L.
LABEL. A narrow slip of paper or parchment, affixed to a deed or writing
hanging at or out of the same. This name is also given to an appending seal.
LABOR. Continued operation; work.
2. The labor and skill of one man is frequently used in a partnership,
and valued as equal to the capital of another.
3. When business has been done for another, and suit is brought to
recover a just reward, there is generally contained in the declaration, a
count for work and labor.
4. Where penitentiaries exist, persons who have committed crimes are
condemned to be imprisoned therein at labor.
LACHES. This word, derived from the French lecher, is nearly synonymous with
negligence.
2. In general, when a party has been guilty of laches in enforcing his
right by great delay and lapse of time, this circumstance will at common law
prejudice, and sometimes operate in bar of a remedy which it is
discretionary and not compulsory in the court to afford. In courts of
equity, also delay will generally prejudice. 1 Chit. Pr. 786, and the cases
there cited; 8 Com. Dig. 684; 6 Johns. Ch. R. 360.
3. But laches may be excused from, ignorance of the party's rights; 2
Mer. R. 362; 2 Ball & Beat. 104; from the obscurity of the transaction; 2
Sch. & Lef. 487; by the pendancy of a suit; 1 Sch. & Lef. 413; and where the
party labors under a legal disability, as insanity, coverture, infancy, and
the like. And no laches can be imputed to the public. 4 Mass. Rep. 522; 3
Serg. & Rawle, 291; 4 Hen. & Munf. 57; 1 Penna. R. 476. Vide 1 Supp. to
Ves. Jr. 436; 2 Id. 170; Dane's Ab. Index, h.t.; 4 Bouv. Inst. n. 3911.
LADY'S FRIEND. The name of a functioner in the British house of commons.
When the husband sues for a divorce, or asks the passage of an act to
divorce him from his wife, he is required to make a provision for her before
the passage of the act; it is the duty of the lady's friend to see that such
a provision is made. Macq. on H. & W. 213.
LAGA. The law; Magna Carta; hence Saxon-lage, Mercen-lage, Dane-lage, &c.
LAGAN. Goods tied to a buoy and cast into the sea are so called. The same as
Ligan. (q.v.)
LAIRESITE. The name of a fine imposed upon those who committed adultery or
fornication. Tech. Dict. h.t.
LAITY. Those persons who do not make a part of the clergy. In the United
States the division of the people into clergy and laity is not authorized by
law, but is, merely conventional.
LAMB. A ram, sheep or ewe, under the age of one year. 4 Car. & P. 216; S. C.
19 Eng. Com. Law Rep. 351.
LAND. This term comprehends any found, soil or earth whatsoever, as meadows,
pastures, woods, waters, marshes, furze and heath. It has an indefinite
extent upwards as well as downwards; therefore land, legally includes all
houses and other buildings standing or built on it; and whatever is in a
direct line between the surface and the centre of the earth, such as mines
of metals and fossils. 1 Inst. 4 a; Wood's Inst. 120; 2 B1. Com. 18; 1
Cruise on Real Prop. 58. In a more confined sense, the word land is said to
denote "frank tenement at the least." Shep. To. 92. In this sense, then,
leaseholds cannot be said to be included under the word lands. 8 Madd. Rep.
635. The technical sense of the word land is farther explained by Sheppard,
in his Touch. p. 88, thus: "if one be seised of some lands in fee, and
possessed of other lands for years, all in one parish, and he grant all his
lands in that parish (without naming them) in fee simple or for life; by
this grant shall pass no, more but the lands he hath in fee simple." It is
also said that land in its legal acceptation means arable land. 11 Co. 55 a.
See also Cro. Car. 293; 2 P. Wms. 458, n.; 5 Ves. 476; 20 Vin. Ab. 203.
2. Land, as above observed, includes in general all the buildings
erected upon it; 9 Day, R. 374; but to this general rule there are some
exceptions. It is true, that if a stranger voluntarily erect buildings on
another's land, they will belong to the owner of the land, and will become a
part of it; 16 Mass. R. 449; yet cases are, not wanting where it has been
decided that such an erection, under peculiar circumstances, would be
considered as personal property. 4 Mass. R. 514; 8 Pick. R. 283, 402; 5
Pick, R. 487; 6 N. H. Rep. 555; 2 Fairf. R. 371; 1 Dana, R. 591; 1 Burr.
144.
LAND MARK. A monument set up in order to ascertain the boundaries between
two contiguous estates. For removing a land mark an action lies. 1 Tho. Co.
Litt. 787. Vide Monuments.
LAND TENANT. He who actually possesses the land. He is technically called
the terre-tenant. (q.v.)
LANDLORD. He who rents or leases real estate to another.
2. He is bound to perform certain duties and is entitled to certain
rights, which will here be briefly considered. 1st. His obligations are, 1.
To perform all the express covenants into which he has entered in making the
lease. 2. To secure to the tenant the quiet enjoyment of the premises
leased; but a tenant for years has no remedy against his landlord, if he be
ousted by one who has no title, in that case the law leaves him to his
remedy against the wrong doer. Y. B. 22 H. VI. 52 b, and 32 H. VI. 32 b;
Cro. Eliz. 214; 2 Leon. 104; and see Bac. Ab. Covenant, B. But the implied
covenant for quiet enjoyment may be qualified, and enlarged or narrowed
according to the particular agreement of the parties; and a general covenant
for quiet enjoyment does not extend to wrongful evictions or disturbances by
a stranger. Y. B. 26 H. VIII. 3 b. 3. The landlord is bound by his express
covenant to repair the premises, but unless he bind himself by express
covenant the tenant cannot compel him to repair. 1 Saund. 320; 1 Vent. 26,
44; 1 Sedgw. on Dam. 429; 2 Keb. 505; 1 T. R. 812; 1 Sim. R. 146.
3. His rights are, 1. To receive the rent agreed upon, and to enforce
all the express covenants into which the tenant may have entered. 2. To
require the lessee to treat the premises demised in such manner that no
injury be done to the inheritance, and prevent waste. 3. To have the
possession of the premises after the expiration of the lease. Vide,
generally, Com. L. & T., B. 3, c. 1; Woodf. L. & T. ch. 10; 2 Bl. Com. by
Chitty, 275, note; Bouv. Inst. Index, h.t.; 1 Supp. to Ves. Jr. 212, 246,
249; 2 Id. 232, 403; Com. Dig. Estate by Grant, G 1; 5 Com. Dig. tit. Nisi
Prius Dig. page 553; 8 Com. Dig. 694; Whart. Dig. Landlord & Tenant. As to
frauds between landlord and tenant, see Hov. Pr. c. 6, p. 199 to 225.
LANGUAGE. The faculty which men possess of communicating their perceptions
and ideas to one another by means of articulate sounds. This is the
definition of spoken language; but ideas and perceptions may be communicated
without sound by writing, and this is called written language. By
conventional usage certain sounds have a definite meaning in one country or
in certain countries, and this is called the language of such country or
countries, as the Greek, the Latin, the French or the English language. The
law, too, has a peculiar language. Vide Eunom. Dial. 2; Technical.
2. On the subjugation of England by William the Conqueror, the French
Norman language was substituted in all law proceedings for the ancient
Saxon. This, according to Blackstone, vol. iii. p. 317, was the language of
the records, writs and pleadings, until the time of Edward III. Mr. Stephen
thinks Blackstone has fallen into an error, and says the record was, from
the earliest period to which that document can be traced, in the Latin
language. Plead. Appx. note 14. By the statute 36 Ed. III. st. 1, c. 15, it
was enacted that for the future all pleas should be pleaded, shown,
defended, answered, debated and judged in the English tongue; but be entered
and enrolled in Latin. The Norman or law French, however, being more
familiar as applied to the law, than any other language, the lawyers
continued to employ it in making their notes of the trial of cases, which
they afterwards published, in that barbarous dialect, under the name of
Reports. After the enactment of this statute, on the introduction of paper
pleadings, they followed in the language, as well as in other respects, the
style of the records, which were drawn up in Latin. This technical language
continued in use till the time of Cromwell, when by a statute the records
were directed to be in English; but this act was repealed at the
restoration, by Charles II., the lawyers finding it difficult to express
themselves as well and as concisely in the vernacular as in the Latin
tongue; and the language of the law continued as before till about the year
1730, when the statute of 4 Geo. II. c. 26, was passed. It provided that
both the pleadings and the records should thenceforward be framed in
English. The ancient terms and expressions which had been so long known in
French and Latin were now literally translated into English. The translation
of such terms and phrases were found to be exceedingly ridiculous. Such
terms as nisi prius, habeas corpus, fieri facias, mandamus, and the like,
are not capable of an English dress with any degree of seriousness. They are
equally absurd in the manner they are employed in Latin, but use and the
fact that they are in a foreign language has made the absurdity less
apparent.
3. By statute of 6 Geo. II., c. 14, passed two years after the last
mentioned statute, the use of technical words was allowed to continue in the
usual language, which defeated almost every beneficial purpose of the former
statute. In changing from one language to another, many words and technical
expressions were retained in the new, which belonged to the more ancient
language, and not seldom they partook of both; this, to the unlearned
student, has given an air of confusion, and disfigured the language of the
law. It has rendered essential also the study of the Latin and French
languages. This perhaps is not to be regretted, as they are the keys which
open to the ardent student vast stores of knowledge. In the United States,
the records, pleadings, and all law proceedings are in the English language,
except certain technical terms which retain their ancient French and Latin
dress.
4. Agreements, contracts, wills and other instruments, may be made in
any language, and will be enforced. Bac. Ab. Wills, D 1. And a slander
spoken in a foreign language, if understood by those present, or a libel
published in such language, will be punished as if spoken or written in the
English language. Bac. Ab. Slander, D 3; 1 Roll. Ab. 74; 6 T. R. 163. For
the construction of language, see articles Construction; Interpretation; and
Jacob's Intr. to the Com. Law Max. 46.
5. Among diplomatists, the French language is the one commonly used. At
an early period the Latin was the diplomatic language in use in Europe.
Towards the end of the fifteenth century that of Spain gained the
ascendancy, in consequence of the great influence which that country then
exercised in Europe. The French, since the age of Louis XIV. has become the
almost universal diplomatic idiom of the civilized world, though some states
use their national language in treaties and diplomatic correspondence. It is
usual in these cases to annex to the papers transmitted, a translation in
the language of the opposite party; wherever it is understood this comity
will be reciprocated. This is the usage of the Germanic confederation, of
Spain, and of the Italian courts. When nations using a common language, as
the United States and Great Britain, treat with each other, such language is
used in their diplomatic intercourse.
Vide, generally, 3 Bl. Com. 323; 1 Chit., Cr. Law, *415; 2 Rey,
Institutions Judiciaires de l'Angleterre, 211, 212.
LANGUIDUS, practice. The name of a return made by the sheriff, when a
defendant whom he has taken by virtue of process is so dangerously sick that
to remove him would endanger his life or health. In that case the officer
may and ought unquestionably to abstain from removing him, and may permit
him to remain even in his own house, in the custody of a follower, though
not named in the warrant, he keeping the key of the house in his possession
the officer ought to remove him as soon is sufficiently recovered. If there
be a doubt as to the state of health of the defendant, the officer should
require the attendance and advice of some respectable medical man, and
require him, at the peril of the consequences of misrepresentation, to
certify in writing whether it be fit to remove the party, or take him to
prison within the county. 3 Chit. Pr. 358. For a form of the return of
languidus, see 3 Chit. P. 249; T. Chit. Forms, 53.
LAPSE, eccl. law. The transfer, by forfeiture, of a right or power to
present or collate to a vacant benefice, from, a person vested with such
right, to another, in consequence of some act of negligence of the former.
Ayl. Parerg. 331.
LAPSED LEGACY. One which is extinguished. The extinguishment may take place
for various reasons. See Legacy, Lapsed.
2. A distinction has been made between a lapsed devise of real estate
and a lapsed legacy of personal estate. The real estate which is lapsed does
not fall into the residue, unless so provided by the will, but descends to
the heir at law; on the contrary, personal property passes by the residuary
clause where it is not otherwise disposed of. 2 Bouv. Inst. 2154-6.
LARCENY, crim. law. The wrongful and fraudulent taking and carrying away, by
one person, of the mere personal goods, of another, from any place, with a
felonious intent to convert them to his, the taker's use, and make them his
property, without the consent of the owner. 4 Wash. C. C. R. 700.
2. To constitute larceny, several ingredients are necessary. 1. The
intent of the party must be felonious; he must intend to appropriate the
property of another to his own use; if, therefore, the accused have taken
the goods under a claim of right, however unfounded, he has not committed a
larceny.
3.-2. There must be a taking from the possession, actual or implied,
of the owner; hence if a man should find goods, and appropriate them to his
own use, he is not a thief on this account. Mart. and Yerg. 226; 14 John.
294; Breese, 227.
4.-3. There must be a taking against the will of the owner, and this
may be in some cases, where he appears to consent; for example, if a man
suspects another of an intent to steal his property, and in order to try him
leaves it in his way, and he takes it, he is guilty of larceny. The taking
must be in the county where the criminal is to be tried. 9 C. & P. 29; S. C.
38 E. C. L. R. 23; Ry. & Mod. 349. But when the taking has been in the
county or state, and the thief is caught with the stolen property in another
county than that where the theft was committed, he may be tried in the
county where arrested with the goods, as by construction of law, there is a
fresh taking in every county in which the thief carries the stolen property.
5.-4. There must be an actual carrying away, but the slightest
removal, if the goods are completely in the power of the thief, is
sufficient to snatch a diamond from a lady's ear, which is instantly dropped
among the curls of her hair, is a sufficient asportation or carrying away.
6.-5. The property taken must be personal property; a man cannot
commit larceny of real estate, or of what is so considered in law. A
familiar example will illustrate this; an apple, while hanging on the tree
where it grew, is real estate, having never been separated from the
freehold; it is not larceny, therefore, at common law, to pluck an apple
from the tree, and appropriate it to one's own use, but a mere trespass; if
that same apple, however, had been separated from the tree by the owner or
otherwise, even by accident, as if shaken by the wind, and while lying on
the ground it should be taken with a felonious intent, the taker would
commit a larceny, because then it was personal property. In some states
there are statutory provisions to punish the felonious taking of emblements
or fruits of plants, while the same are hanging by the roots, and there the
felony is complete, although the thing stolen is not, at common law,
strictly personal property. Animals ferae naturae, while in the enjoyment of
their natural liberty, are not the subjects of larceny; as, doves; 9 Pick.
15; Bee. 3 Binn. 546. See Bee; 5 N. H. Rep. 203. At common law, choses in
action are not subjects of larceny. 1 Port. 33.
7. Larceny is divided in some states, into grand and petit larceny this
depends upon the value of the property stolen. Vide 1 Hawk, 141 to 250, ch.
19; 4 Bl. Com. 229 to 250; Com. Dig. Justices, O 4, 5, 6, 7, 8; 2 East's P.
C. 524 to 791; Burn's Justice, Larceny; Williams' Justice, Felony; 3
Chitty's Cr. Law, 917 to 992; and articles Carrying Away; Invito Domino;
Robbery; Taking; Breach, 6.
LARGE. Broad; extensive; unconfined. The opposite of strict, narrow, or
confined. At large, at liberty.
LAS PARTIDAS. The name of a code of Spanish law; sometimes called las siete
partidas, or the seven parts, from the number of its principal divisions. It
is a compilation from the civil law, the customary law of Spain, and the
canon law. Such of its provisions is are applicable are in force in
Louisiana, Florida, and Texas.
LASCIVIOUS CARRIAGE, law of Connecticut. An offence, ill defined, created by
statute, which enacts that every person who shall be guilty of lascivious
carriage and behaviour, and shall be thereof duly convicted, shall be
punished by fine, not exceeding ten dollars, or by imprisonment in a common
gaol, not exceeding two months, or by fine and imprisonment, or both, at the
discretion of the court. This law was passed at a very early period. Though
indefinite in its terms, it has received a construction so limiting it, that
it may be said to punish those wanton acts between persons of different
sexes, who are not married to each other, that flow from the exercise of
lustful passions, and which are not otherwise punished as crimes against
chastity and public decency. 2 Swift's Dig. 343; 2 Swift's Syst. 331.
2. Lascivious carriage may consist not only in mutual acts of wanton
and indecent familiarity between persons of different sexes, but in wanton
and indecent actions against the will, and without the consent of one of
them, as if a man should forcibly attempt to pull up the clothes of a woman.
5 Day, 81.
LAST RESORT. A court of last resort, is one which decides, definitely,
without appeal or writ of error, or any other examination whatever, a suit
or action, or some other matter, which has been submitted to its judgment,
and over which it has jurisdiction.
2. The supreme court is a court of last resort in all matters which
legally come before it; and whenever a court possesses the power to decide
without appeal or other examination whatever, a subject matter submitted to
it, it is a court of last resort; but this is not to be understood as
preventing an examination into its jurisdiction, or excess of authority, for
then the judgment of a superior does not try and decide so much whether the
point decided has been so done according to law, as to try the authority of
the inferior court.
LAST SICKNESS. That of which a person died.
2. The expenses of this sickness are generally entitled to a
preference, in payment of debts of an insolvent estate. Civ. Code of Lo.
art. 3166; Purd. Ab. 393.
3. To prevent impositions, the statute of frauds requires that
nuncupative wills shall be made during the testator's last sickness. Rob. on
Frauds, 556; 20 John. R. 502.
LATENT, construction. That which is concealed; or which does not appear; for
example, if a testator bequeaths to his cousin Peter his white horse; and at
the time of making his will and at his death he had two cousins named Peter,
and he owned two white horses, the ambiguity in this case would be latent,
both as respects the legatee, and the thing bequeathed. Vide Bac. Max. Reg.
23, and article Ambiguity. A latent ambiguity can only be made to appear by
parol evidence, and may be explained by the same kind of proof. 5 Co. 69.
LATITAT, Eng. law. He lies hid. The name of a writ calling a defendant to
answer to a personal action in the king's bench; it derives its name from a
supposition that the defendant lurks and lies hid, and cannot be found in
the county of Middlesex, (in which the said court is holden,) to be taken
there, but is gone into some other county, and therefore requiring the
sheriff to apprehend him in such other county. Fitz. N. B. 78.
LAUNCHES. Small vessels employed to carry the cargo of a large one to and
from the shore; lighters. (q.v.)
2. The goods on board of a launch are at the risk of the insurers till
landed. 5 N. S. 887. The duties and rights of the master of a launch are the
same as those of the master of a lighter.
LAW. In its most general and comprehensive sense, law signifies a rule of
action; and this term is applied indiscriminately to all kinds of action;
whether animate or inanimate, rational or irrational. 1 Bl. Com. 38. In its
more confined sense, law denotes the rule, not of actions in general, but of
human action or conduct. In the civil code of Louisiana, art. 1, it is
defined to be "a solemn expression of the legislative will." Vide Toull. Dr.
Civ. Fr. tit. prel. s. 1, n. 4; 1 Bouv. Inst. n. 1-3.
2. Law is generally divided into four principle classes, namely;
Natural law, the law of nations, public law, and private or civil law. When
considered in relation to its origin, it is statute law or common law. When
examined as to its different systems it is divided into civil law, common
law, canon law. When applied to objects, it is civil, criminal, or penal. It
is also divided into natural law and positive law. Into written law, lex
scripta; and unwritten law, lex non scripta. Into law merchant, martial law,
municipal law, and foreign law. When considered as to their duration, laws
are immutable and arbitrary or positive; when as their effect, they are
prospective and retrospective. These will be separately considered.
LAW, ARBITRARY. An arbitrary law is one made by the legislator simply
because he wills it, and is not founded in the nature of things; such law,
for example, as the tariff law, which may be high or low. This term is used
in opposition to immutable.
LAW, CANON. The canon law is a body of Roman ecclesiastical law, relative to
such matters as that church either has or pretends to have the proper
jurisdiction over:
2. This is compiled from the opinions of the ancient Latin fathers, the
decrees of general councils, and the decretal epistles and bulls of the holy
see. All which lay in the same confusion and disorder as the Roman civil
law, till about the year 1151, when one Gratian, an Italian monk, animated
by the discovery of Justinian's Pandects, reduced the ecclesiastical
constitutions also into some method, in three books, which he entitled
Concordia discordantium canonum, but which are generally known by the name
of Decretum Gratiani. These reached as low as the time of Pope Alexander
III. The subsequent papal decrees to the pontificate of Gregory IX., were
published in much the same method, under the auspices of that pope, about
the year 1230, in five books, entitled Decretalia Gregorii noni. A sixth book
was added by Boniface VIII., about the year 1298, which is called Sextus
decretalium. The Clementine constitution or decrees of Clement V., were in
like manner authenticated in 1317, by his successor, John XXII., who also
published twenty constitutions of his own, called the Extravagantes Joannis,
all of which in some manner answer to the novels of the civil law. To these
have since been added some decrees of the later popes, in five books called
Extravagantes communes. And all these together, Gratian's Decrees, Gregory's
Decretals, the Sixth Decretals, the Clementine Constitutions, and the
Extravagants of John and his successors, form the Corpus juris canonici, or
body of the Roman canon law. 1 Bl. Com. 82; Encyclopedie, Droit Canonique,
Droit Public Ecclesiastique; Dict. de Jurispr. Droit Canonique; Ersk. Pr. L.
Scotl. B. 1, t. 1, s. 10. See, in general, Ayl. Par. Jur. Can. Ang.; Shelf.
on M. & D. 19; Preface to Burn's Eccl. Law, by Thyrwhitt, 22; Hale's Hist.
C. L. 26-29; Bell's Case of a Putative Marriage, 203; Dict. du Droit
Canonique; Stair's Inst. b. 1, t. 1, 7.
LAW, CIVIL. The term civil law is generally applied by way of eminence to
the civil or municipal law of the Roman empire, without distinction as to
the time when the principles of such law were established or modified. In
another sense, the civil law is that collection of laws comprised in the
institutes, the code, and the digest of the emperor Justinian, and the novel
constitutions of himself and some of his successors. Ersk. Pr. L. Scotl. B.
1, t. l, s. 9; 6 L. R. 494.
2. The Institutes contain the elements or first principles of the Roman
law, in four books. The Digests or Pandects are in fifty books, and contain
the opinions and writings of eminent lawyers digested in a systematical
method, whose works comprised more than two thousand volumes, The new code,
or collection of imperial constitutions, in twelve books; which was a
substitute for the code of Theodosius. The novels or new constitutions,
posterior in time to the other books, and amounting to a supplement to the
code, containing new decrees of successive emperors as new questions
happened to arise. These form the body of the Roman law, or corpus juris
civilis, as published about the time of Justinian.
3. Although successful in the west, these laws were not, even in the
lifetime of the emperor universally received; and after the Lombard invasion
they became so totally neglected, that both the Code and Pandects were lost
till the twelfth century, A. D. 1130; when it is said the Pandects were
accidentally discovered at Amalphi, and the Code at Ravenna. But, as if
fortune would make an atonement for her former severity, they have since
been the study of the wisest men, and revered as law, by the politest
nations.
4. By the term civil law is also understood the particular law of each
people, opposed to natural law, or the law of nations, which are common to
all. Just. Inst. l. 1, t. 1, Sec. 1, 2; Ersk. Pr. L. Scot. B. 1, t. 1, s. 4.
In this sense it, is used by Judge Swift. See below.
5. Civil law is also sometimes understood as that which has emanated
from the secular power opposed to the ecclesiastical or military.
6. Sometimes by the term civil law is meant those laws which relate to
civil matters only; and in this sense it is opposed to criminal law, or to
those laws which concern criminal matters. Vide Civil.
7. Judge Swift, in his System of the Laws of Connecticut, prefers the
term civil law, to that of municipal law. He considers the term municipal to
be too limited in its signification. He defines civil law to be a rule of
human action, adopted by mankind in a state of society, or prescribed by the
supreme power of the government, requiring a course of conduct not repugnant
to morality or religion, productive of the greatest political happiness, and
prohibiting actions contrary thereto, and which is enforced by the sanctions
of pains and penalties. 1 Sw. Syst. 37. See Ayl. Pand. B. 1, t. 2, p. 6.
See, in general, as to civil law, Cooper's Justinian the Pandects; 1
Bl. Com. 80, 81; Encyclopedie, art. Droit Civil, Droit Romain; Domat, Les
Loix Civiles; Ferriere's Dict.; Brown's Civ. Law; Halifax's Analys. Civ.
Law; Wood's Civ. Law; Ayliffe's Pandects; Hein. Elem. Juris.; Erskine's
Institutes; Pothier; Eunomus, Dial. 1; Corpus Juris Civilis; Taylor's Elem.
Civ. Law.
LAW, COMMON. The common law is that which derives its force and authority
from the universal consent and immemorial practice of the people. It has
never received the sanction of the legislature, by an express act, which is
the criterion by which it is distinguished from the statute law. It has
never been reduced to writing; by this expression, however, it is not meant
that all those laws are at present merely oral, or communicated from former
ages to the present solely by word of mouth, but that the evidence of our
common law is contained in our books of Reports, and depends on the general
practice and judicial adjudications of our courts.
2. The common law is derived from two sources, the common law of
England, and the practice and decision of our own courts. In some states the
English common law has been adopted by statute. There is no general rule to
ascertain what part of the English common law is valid and binding. To run
the line of distinction, is a subject of embarrassment to courts, and the
want of it a great perplexity to the student. Kirb. Rep. Pref. It may,
however, be observed generally, that it is binding where it has not been
superseded by the constitution of the United States, or of the several
states, or by their legislative enactments, or varied by custom, and where
it is founded in reason and consonant to the genius and manners of the
people.
3. The phrase "common law" occurs in the seventh article of the
amendments of the constitution of the United States. "In suits at common
law, where the value in controversy shall not exceed twenty dollar says that
article, "the right of trial by jury shall be preserved. The "common law"
here mentioned is the common law of England, and not of any particular
state. 1 Gall. 20; 1 Bald. 558; 3 Wheat. 223; 3 Pet. R. 446; 1 Bald. R.
554. The term is used in contradistinction to equity, admiralty, and
maritime law. 3 Pet. 446; 1 Bald. 554.
4. The common law of England is not in all respects to be taken as that
of the United States, or of the several states; its general principles are
adopted only so far as they are applicable to our situation. 2 Pet, 144; 8
Pet. 659; 9 Cranch, 333; 9 S. & R. 330; 1 Blackf 66, 82, 206; Kirby, 117; 5
Har. & John. 356; 2 Aik. 187; Charlt. 172; 1 Ham. 243. See 5 Cow. 628; 5
Pet. 241; 1 Dall. 67; 1 Mass. 61; 9 Pick. 532; 3 Greenl. 162; 6 Greenl. 55;
3 Gill & John. 62; Sampson's Discourse before the Historical Society of New
York; 1 Gallis. R. 489; 3 Conn. R. 114; 2 Dall. 2, 297, 384; 7 Cranch, R.
32; 1 Wheat. R. 415; 3 Wheat. 223; 1 Blackf. R. 205; 8 Pet. R. 658; 5 Cowen,
R. 628; 2 Stew. R. 362.
LAW, CRIMINAL. By criminal law is understood that system of laws which
provides for the mode of trial of persons charged with criminal offences,
defines crimes, and provides for their punishments.
LAW, FOREIGN. By foreign laws are understood the laws of a foreign country.
The states of the American Union are for some purposes foreign to each
other, and the laws of each are foreign in the others. See Foreign laws.
LAW, INTERNATIONAL. The law of nature applied to the affairs of nations,
commonly called the law of nations, jus gentium; is also called by some
modern authors international law. Toullier, Droit Francais, tit. rel. Sec.
12. Mann. Comm. 1; Bentham. on Morals, &c., 260, 262; Wheat. on Int. Law;
Foelix, Du Droit Intern. Prive, n. 1.
LAW, MARTIAL. Martial law is a code established for the government of the
army and navy of the United States.
2. Its principal rules are to be found in the articles of war. (q.v.)
The object of this code, or body of regulations is to, maintain that order
and discipline, the fundamental principles of which are a due obedience of
the several ranks to their proper officers, a subordination of each rank to
their superiors, and the subjection of the whole to certain rules of
discipline, essential to their acting with the union and energy of an
organized body. The violations of this law are to be tried by a court
martial. (q.v.)
3. A military commander has not the power, by declaring a district to
be under martial law, to subject all the citizens to that code, and to
suspend the operation of the writ of habeas corpus. 3 Mart. (Lo.) 531. Vide
Hale's Hist. C. L. 38; 1 Bl. Com. 413; Tytler on Military Law; Ho. on C. M.;
M'Arth. on C. M.; Rules and Articles of War, art. 64, et seq; 2 Story, L. U.
S. 1000.
LAW, MERCHANT. A system of customs acknowledged and taken notice of by all
commercial nations; and those customs constitute a part of the general law
of the land; and being a part of that law their existence cannot be proved
by witnesses, but the judges are bound to take notice of them ex officio.
See Beawes' Lex Mercatoria Rediviva; Caines' Lex Mercatoria Americana; Com.
Dig. Merchant, D; Chit. Comm. Law; Pardess. Droit Commercial; Collection des
Lois Maritimes anterieure au dix hutime sicle, par Dupin; Capmany,
Costumbres Maritimas; II Consolato del Mare; Us et Coutumes de la Mer;
Piantandia, Della Giurisprudenze Maritina Commerciale, Antica e Moderna;
Valin, Commentaire sur l'Ordonnance de la Marine, du Mois d'Aout, 1681;
Boulay-Paty, Dr. Comm.; Boucher, Institutions au Droit Maritime.
LAW, MUNICIPAL. Municipal law is defined by Mr. Justice Blackstone to be "a
rule of civil conduct prescribed by the supreme power in a state, commanding
what is right and prohibiting what is wrong." This definition has been
criticised, and has been perhaps, justly considered imperfect. The latter
part has been thought superabundant to the first; see Mr. Christian's note;
and the first too general and indefinite, and too limited in its
signification to convey a just idea of the subject. See Law, civil. Mr.
Chitty defines municipal law to be "a rule of civil conduct, prescribed by
the supreme power in a state, commanding what shall be done or what shall
not be done." 1 Bl. Com. 44, note 6, Chitty's edit.
2. Municipal law, among the Romans, was a law made to govern a
particular city or province; this term is derived from the Latin municipium,
which among them signified a city which was governed by its own laws, and
which had its own magistrates.
LAW OF NATIONS. The science which teaches the rights subsisting between
nations or states, and the obligations correspondent to those rights.
Vattel's Law of Nat. Prelim. Sec. 3. Some complaints, perhaps not unfounded,
have been made as to the want of exactness in the definition of this term.
Mann. Comm. 1. The phrase "international law" has been proposed, in its
stead. 1 Benth. on Morals and Legislation, 260, 262. It is a system of rules
deducible by natural reason from the immutable principles of natural
justice, and established by universal consent among the civilized
inhabitants of the world; Inst. lib. 1, t. 2, Sec. 1; Dig. lib. 1, t. 1, l.
9; in order to decide all disputes, and to insure the observance of good
faith and justice in that intercourse which must frequently occur between
them and the individuals belonging to each or it depends upon mutual
compacts, treaties, leagues and agreements between the separate, free, and
independent communities.
2. International law is generally divided into two branches; 1. The
natural law of nations, consisting of the rules of justice applicable to the
conduct of states. 2. The positive law of nations, which consist of, 1. The
voluntary law of nations, derived from the presumed consent of nations,
arising out of their general usage. 2. The conventional law of nations,
derived from the express consent of nations, as evidenced in treaties and
other international compacts. 3. The customary law of nations, derived from
the express consent of nations, as evidenced in treaties and other
international compacts between themselves. Vattel, Law of Nat. Prel.
3. The various sources and evidence of the law of nations, are the
following: 1. The rules of conduct, deducible by reason from the nature of
society existing among independent states, which ought to be observed among
nations. 2. The adjudication of international tribunals, such as prize
courts and boards of arbitration. 3. Text writers of authority. 4.
Ordinances or laws of particular states, prescribing rules for the conduct
of their commissioned cruisers and prize tribunal's. 5. The history of the
wars, negotiations, treaties of peace, and other matters relating to the
public intercourse of nations. 6. Treaties of peace, alliance and commerce,
declaring, modifying, or defining the pre-existing international law. Wheat.
Intern. Law, pt. 1, c. 1, Sec. 14.
4. The law of nations has been divided by writers into necessary and
voluntary; or into absolute and arbitrary; by others into primary and
secondary, which latter has been divided into customary and conventional.
Another division, which is the one more usually employed, is that of the
natural and positive law of nation's. The natural law of nations consists of
those rules, which, being universal, apply to all men and to all nations,
and which may be deduced by the assistance of revelation or reason, as being
of utility to nations, and inseparable from their existence. The positive
law of nations consists of rules and obligations, which owe their origin,
not to the divine or natural law, but to human compacts or agreements,
either express or implied; that is, they are dependent on custom or
convention.
5. Among the Romans, there were two sorts of laws of nations, namely,
the primitive, called primarium, and the other known by the name of
secundarium. The primarium, that is to say, primitive or more ancient, is
properly the only law of nations which human reason suggests to men; as the
worship of God, the respect and submission which children have for their
parents, the attachment which citizens have for their country, the good
faith which ought to be the soul of every agreement, and the like. The law
of nations called secundarium, are certain usages which have been
established among men, from time to time, as they have been felt to be
necessary. Ayl. Pand. B. 1, t. 2, p. 6.
As to the law of, nations generally, see Vattel's Law of Nations;
Wheat. on Intern. Law; Marten's Law of Nations; Chitty's Law of Nations;
Puffend. Law of Nature and of Nations, book 3; Burlamaqui's Natural Law,
part 2, c. 6; Principles of Penal Law, ch. 13; Mann. Comm. on the Law of
Nations; Leibnitz, Codex Juris Gentium Diplomaticus; Binkershoek,
Quaestionis Juris Publici, a translation of the first book of which, made by
Mr. Duponceau, is published in the third volume of Hall's Law Journal;
Kuber, Droit des Gens Modeme de l'Europe; Dumont, Corps Diplomatique; Mably,
Droit Public de l'Europe; Kent's Comm. Lecture 1.
LAW OF NATURE. The law of nature is that which God, the sovereign of the
universe, has prescribed to all men, not by any formal promulgation, but by
the internal dictate of reason alone. It is discovered by a just
consideration of the agreeableness or disagreeableness of human actions to
the nature of man; and it comprehends all the duties which we owe either to
the Supreme Being, to ourselves, or to our neighbors; as reverence to God,
self-defence, temperance, honor to our parents, benevolence to all, a strict
adherence to our engagements, gratitude, and the like. Erskine's Pr. of L. of
Scot. B. 1, t. 1, s. 1. See Ayl. Pand. tit. 2, p. 5; Cicer. de Leg. lib. 1.
2. The primitive laws of nature may be reduced to six, namely: 1.
Comparative sagacity, or reason. 2. Self-love. 3. The attraction of the
sexes to each other. 4. The tenderness of parents towards their children. 5.
The religious sentiment. 6. Sociability.
3.-1. When man is properly organized, he is able to discover moral
good from moral evil; and the study of man proves that man is not only an
intelligent, but a free being, and he is therefore responsible for his
actions. The judgment we form of our good actions, produces happiness; on
the contrary the judgment we form of our bad actions produces unhappiness.
4.-2. Every animated being is impelled by nature to his own
preservation, to defend his life and body from injuries, to shun what may be
hurtful, and to provide all things requisite to his existence. Hence the
duty to watch over his own preservation. Suicide and duelling are therefore
contrary to this law; and a man cannot mutilate himself, nor renounce his
liberty.
5.-3. The attraction of the sexes has been provided for the
preservation of the human race, and this law condemns celibacy. The end of
marriage proves that polygamy, (q.v.) and polyendry, (q.v.) are contrary
to the law of nature. Hence it follows that the husband and wife have a
mutual and exclusive right over each other.
6.-4. Man from his birth is wholly unable to provide for the least of
his necessities; but the love of his parents supplies for this weakness.
This is one of the most powerful laws of nature. The principal duties it
imposes on the parents, are to bestow on the child all the care its weakness
requires, to provide for its necessary food and clothing, to instruct it, to
provide for its wants, and to use coercive means for its good, when
requisite.
7.-5. The religious sentiment which leads us naturally towards the
Supreme Being, is one of the attributes which belong to humanity alone; and
its importance gives it the rank of the moral law of nature. From this
sentiment arise all the sects and different forms of worship among men.
8.-6. The need which man feels to live in society, is one of the
primitive laws of nature, whence flow our duties and rights; and the
existence of society depends upon the condition that the rights of all shall
be respected. On this law are based the assistance, succors and good offices
which men owe to each other, they being unable to provide each every thing
for himself.
LAW, PENAL. One which inflicts a penalty for a violation of its enactment.
LAW, POSITIVE. Positive law, as used in opposition to natural law, may be
considered in a threefold point of view. 1. The universal voluntary law, or
those rules which are presumed to be law, by the uniform practice of nations
in general, and by the manifest utility of the rules themselves. 2. The
customary law, or that which, from motives of convenience, has, by tacit,
but implied agreement, prevailed, not generally indeed among all nations,
nor with so permanent a utility as to become a portion of the universal
voluntary law, but enough to have acquired a prescriptive obligation among
certain states so situated as to be mutually benefited by it. 1 Taunt. 241.
3. The conventional law, or that which is agreed between particular states
by express treaty, a law binding on the parties among whom such treaties are
in force. 1 Chit. Comm. Law, 28.
LAW, PRIVATE. An act of the legislature which relates to some private
matters, which do not concern the public at large.
LAW, PROSPECTIVE. One which provides for, and regulates the future acts of
men, and does not interfere in any way with what has past.
LAW, PUBLIC. A public law is one in which all persons have an interest.
LAW, RETROSPECTIVE. A retrospective law is one that is to take effect, in
point of time, before it was passed.
2. Whenever a law of this kind impairs the obligation of contracts, it
is void. 3 Dall. 391. But laws which only vary the remedies, divest no
right, but merely cure a defect in proceedings otherwise fair, are valid. 10
Serg. & Rawle, 102, 3; 15 Serg. & Rawle, 72. See Ex post facto.
LAW, STATUTE. The written will of the legislature, solemnly expressed
according to the forms prescribed by the constitution; an act of the
legislature. See Statute.
LAW, UNWRITTEN, or lex non scripta. All the laws which do not come under the
definition of written law; it is composed, principally, of the law of
nature, the law of nations, the common law, and customs.
LAW, WRITTEN, or lex scripta. This consists of the constitution of the
United States the constitutions of the several states the acts of the
different legislatures, as the acts of congress, and of the legislatures of
the several states, and of treaties. See Statute.
LAWFUL. That which is not forbidden by law. Id omne licitum est, quod non
est legibus prohibitum, quamobrem, quod, lege permittente, fit, poenam non
meretur. To be valid a contract must be lawful.
LAWLESS. Without law; without lawful control.
LAWS EX POST FACTO. Those which are made to punish actions committed before
the existence of such laws, and which had not been declared crimes by
preceding laws. Declar. of Rights, Mass. part 1, s. 24 Declar. of Rights,
Maryl. art. 15. By the constitution of the United States and those of the
several states, the legislatures are forbidden to pass ex post facto laws.
Const. U. S. art. 1, s. 10, subd. 1.
2. There is a distinction between ex post facto laws and retrospective
laws; every ex post facto law must necessarily be retrospective, but every
retrospective law is not an ex post facto law; the former only are
prohibited.
3. Laws under the following circumstances are to be considered ex post
facto laws, within the words and intents of the prohibition 1st. Every law
that makes an act done before the passing of the law, and which was innocent
when done, criminal, and punishes such action. 2d. Every law that aggravates
a crime, or makes it greater than it was when committed. 3d. Every law that
changes the punishment, and inflicts a greater punishment than the law
annexed to the crime when committed. 4th. Every law that alters the legal
rules of evidence and receives less, or different testimony, than the law
required at the time of the commission of the offence, in order to convict
the offender. 3 Dall. 390.
4. The policy, the reason and humanity of the prohibition against
passing ex post facto laws, do not extend to civil cases, to cases that
merely affect the private property of citizens. Some of the most necessary
acts of legislation are, on the contrary, founded upon the principles that
private rights must yield to public exigencies. 3 Dall. 400; 8 Wheat. 89;
see 1 Cranch, 109; 1 Gall. Rep. 105; 9 Cranch, 374; 2 Pet. S. C. R. 627; Id.
380; Id. 523.
LAWS OF THE TWELVE TABLES. Laws of ancient Rome composed in part from those
of Solon, and other Greek legislators, and in part from the unwritten laws
or customs of the Romans. These laws first appeared in the year of Rome 303,
inscribed on ten plates of brass. The following year two others were added,
and the entire code bore the name of the Laws of the Twelve Tables. The
principles they contained became the source of all the Roman law, and serve
to this day as the foundation of the jurisprudence of the greatest part of
Europe.
See a fragment of the Law of the twelve Tables in Coop. Justinian, 656;
Gibbon's Rome, c. 44.
LAWS OF THE HANSE TOWNS. A code of maritime laws known as the laws of the
Hanse towns, or the ordinances of the Hanseatic towns, was first published
in German, at Lubec, in 1597. In an assembly of deputies from the several
towns held at Lubec, these laws were afterwards, May 23, 1614, revised and
enlarged. The text of this digest, and a Latin translation, are published
with a commentary by Kuricke; and a French translation has been given by
Cleirac.
LAWS OF OLERON, maritime law. A code of sea laws of deserved celebrity. It
was originally promulgated by Eleanor, duchess of Guienne, the mother of
Richard the First of England. Returning from the Holy Land, and familiar
with the maritime regulations of the Archipelago, she enacted these laws at
Oleron in Guienne, and they derive their title from the place of their
publication. The language in which they were originally written is the
Gascon, and their first object appears to have been the commercial
operations of that part of France only. Richard I., of England, who
inherited the dukedom of Guienne from his mother, improved this code, and
introduced it into England. Some additions were made to it by King John; it
was promulgated anew in the 50th year of Henry III., and received its
ultimate confirmation in the 12th year of Edward III. Brown's Civ. and Adm.
Law, vol. ii. p. 40.
2. These laws are inserted in the beginning of the book entitled "Us et
Coutumes de la Mer," with a very excellent commentary on each section by
Clairac, the learned editor. A translation is to be found in the Appendix to
1 Pet. Adm. Dec.; Marsh. Ins. B. 1, c. 1, p. 16. See Laws of Wisbuy: Laws of
the Hanse Towns; Code
LAWS OF WISBUY, maritime law. A code of sea laws established by "the
merchants and masters of the magnificent city of Wisbuy." This city was the
ancient capital of Gothland, an island in the Baltic sea, anciently much
celebrated for its commerce and wealth, now an obscure and inconsiderable
place. Malyne, in his collection of sea laws, p. 44, says that the laws of
Oleron were translated into Dutch by the people of Wisbuy for the use of the
Dutch coast. By Dutch probably means German, and it cannot be denied that
many of the provisions contained in the Laws of Wisbuy, are precisely the
same as those which are found in the Laws of Oleron. The northern writers
pretend however that they are more ancient than the Laws of Oleron, or than
even the Consolato del Mare. Clairac treats this notion with contempt, and
declares that at the time of the promulgation of the laws of Oleron, in
1266, which was many years after they were compiled, the magnificent city of
Wisbuy had not yet acquired the denomination of a town. Be this as it may,
these laws were for some ages, and indeed still remain, in great authority
in the northern part of Europe. "Lex Rhodia navalis," says Grotius, "pro
jure gentium, in illo mare Mediteraneo vigebat; sicut apud Gallium leges
Oleronis, et apud omnes transrhenanos, leges Wisbuenses." Grotius de Jure
bel. lib. 2, c. 3.
A translation of these laws is to be found in 1 Pet. Adm. Dec.
Appendix. See Code; Laws of Oleron.
LAWS, RHODIAN, maritime. law. A code of laws adopted by the people of
Rhodes, who had, by their commerce and naval victories, obtained the
sovereignty of the sea, about nine hundred. years before the Christian era.
There is reason to suppose this code has not been transmitted to posterity,
at least not in a perfect state. A collection of marine constitutions, under
the denomination of Rhodian Laws, may be seen in Vinnius, but they bear
evident marks of a spurious origin. See Marsh. Ins. B. 1, c. 4, p. 15; this
Dict. Code; Laws of Oleron; Laws of Wisbuy; Laws of the Hanse Towns.
LAWYER. A counselor; one learned in the law. Vide attorney.
LAY, English law. That which relates to persons or things not
ecclesiastical. In the United States the people are not, by law, divided, as
in England, into ecclesiastical and lay. The law makes no distinction
between them.
TO LAY, pleading. To state or to allege. The place from whence a jury are to
be summoned, is called the venue, and the allegation in the declaration, of
the place where the jury is to be summoned, is in technical language, said
to lay the venue. 3 Steph. Com. 574; 3 Bouv. Inst. n. 2826.
TO LAY DAMAGES. The statement at the conclusion of the declaration the
amount of damages which the plaintiff claims.
LAY CORPORATION. One which affects or relates to other than ecclesiastical
persons.
LAY DAYS, mar. law. The time allowed to the master of a vessel for loading
and unloading the same. In the absence of any custom to the contrary,
Sundays are to be computed in the calculation of lay days at the port of
discharge. 10 Mees. & Wels. 331. See 3 Esp. 121. They differ from demurrage.
(q.v.)
LAY PEOPLE. By this expression was formerly understood jurymen. Finch's Law,
B. 4, p. 381 Eunom. Dial. 2, Sec. 51, p. 151.
LAYMAN, eccl. law. One who is not an ecclesiastic nor a clergyman.
LAZARET or LAZARETTO. A place selected by public authority, where vessels
coming from infected or unhealthy countries are required to perform
quarantine. Vide Health.
LAESAE MAJESTATIS CRIMEN. The crime of high treason. Glanv. lib. 1, c. 2;
Clef des Lois Rom. h.t.; Inst. 4, 18, 3 Dig. 48, 4; Code, 9, 8.
LE ROI S'AVISERA. The king will consider of it. This phrase is used by the
English monarch when he gives his dissent to an act passed by the lords and
commons. The same formula was used by the late king of the French, for the
same purpose. Toull. n. 52. Vide Veto.
LE ROI LE VEUT. The king assents. This is the formula used in England, and
formerly in France, when the king approved of a bill passed by the
legislature. 1 Toull. n. 52.
LE ROI VEUT EN DELIBERER. The king will deliberate on it. This is the
formula which the late French king used, when he intended to veto an act of
the legislative assembly. 1 Toull. n. 42.
TO LEAD TO USES. In England, when deeds are executed prior to fines and
recoveries, they are called deeds to lead to uses; when subsequent, deeds to
declare the uses.
LEADING. That which is to be followed; as, a leading case; leading question
leading counsel.
LEADING CASE. A case decided by a court in the last resort, which settles a
particular point or question; the principles upon which it is decided are to
be followed in future cases, which are similar to it. Collections of such
cases have been made, with commentaries upon them by White, by Wallace and
Hare, and others.
LEADING COUNSEL, English, law. When there are two or more counsel employed
on the same side in a cause, he who has the principal management of the
cause, is called the leading counsel, as distinguished from the other, who
is called the junior counsel.
LEADING QUESTION, evidence, Practice. A question which puts into the
witness' mouth the words to be echoed back, or plainly suggests the answer
which the party wishes to get from him. 7 Serg. & Rawle, 171; 4 Wend. Rep.
247. In that case the examiner is said to lead him to the answer. It is not
always easy to determine what is or is not a leading question.
2. These questions cannot, in general, be put to a witness in his
examination in chief. 6 Binn. R. 483, 3 Binn. R. 130; 1 Phill. Ev. 221; 1
Stark. Ev. 123. But in an examination in chief, questions may be put to lead
the mind of the witness to the subject of inquiry; and they are allowed when
it appears the witness wishes to conceal the truth, or to favor the opposite
party, or where, from the nature of the case, the mind of the witness cannot
be directed to the subject of inquiry, without a particular specification of
such subject. 1 Camp. R. 43; 1 Stark. C. 100.
3. In cross-examinations, the examiner has generally the right to put
leading questions. 1 Stark. Ev. 132; 3 Chit. Pr. 892; Rosc. Civ. Ev. 94; 3
Bouv. Inst. n. 3203-4.
LEAGUE, measure. A league is a measure of length, which consists of three
geographical miles. The jurisdiction of the United States extends into the
sea a marine league. See Acts of Congress of June 5, 1794; 1 Story's L. U.
S. 352; and April 20, 1818, 3 Story's L. U. S. 1694; 1 Wait's State Papers,
195. Vide Cannon Shot.
LEAGUE, crim. law, contracts. In criminal law, a league is a conspiracy to
do an unlawful act. The term is but little used.
2. In contracts it is applied to agreements between states. Leagues
between states are of several kinds. 1st. Leagues offensive and defensive,
by which two or more nations agree not only to defend each other, but to
carry on war against their common enemies. 2d. Defensive, but not offensive,
obliging each to defend the other against any foreign invasion. 3d. Leagues
of simple amity, by which one contracts not to invade, injure, or offend the
other; this usually includes the liberty of mutual commerce and trade, and
the safe guard of merchants and traders in each others dominion. Bac. Ab.
Prerogative, D 4. Vide Confederacy; Conspiracy; Peace; Truce; War.
LEAKAGE. The waste which has taken place in liquids, by their escaping out
of the casks or vessels in which they were kept. By the act of March 2,
1799, s. 59, 1 Story's L. U. S, 625, it is provided that there be an
allowance of two per cent for leakage, on the quantity which shall appear by
the gauge to be contained in any cask of liquors, subject to duty by the
gallon and ten per cent on all beer, ale, and porter, in bottles and five
per cent on all other liquors in bottles; to be deducted, from the invoice
quantity, in lieu of breakage or it shall be lawful to compute the duties on
the actual quantity, to be ascertained by tale, at the option of the
importer, to be made at the time of entry.
LEAL. Loyal; that which belongs to the law.
LEAP YEAR. Vide Bissextile.
LEASE, contracts. A lease is a contract for the possession and profits of
lands and tenements on one side, and a recompense of rent or other income on
the other; Bac. Ab. Lease, in pr.; or else it is a conveyance of lands and
tenements to a person for life, or years, or at will, in consideration of a
return of rent, or other recompense. Cruise's Dig. tit. Leases. The
instrument in writing is also known by the name of lease; and this word
sometimes signifies the term, or time for which it was to run; for example,
the owner of land, containing a quarry, leases the quarry for ten years, and
then conveys the land, "reserving the quarry until the end of the lease;" in
this case the reservation remained in force tin the ten years expired,
although the lease was cancelled by mutual consent within the ten. years. 8
Pick. R. 3 3 9.
2. To make such contract, there must be a lessor able to grant the
land; a lessee, capable of accepting the grant, and a subject-matter capable
of being granted. See Lessor; Lessee.
3. This contract resembles several others, namely: a sale,, to
constitute which there must be a thing sold, a price for which it is sold,
and the consent of the parties as to both. So, in a lease there must be a
thing leased, the price or rent, and the consent of the parties as to both.
Again, a lease resembles the contract of hiring of a thing, locatio condudio
rei, where there must be a thing to be hired, a price or compensation,
called the hire, and the agreement and consent of the parties respecting
both. Poth. Bail a rente, n. 2.
4. Before proceeding to the examination of the several parts of a
lease, it will be proper here to say a few words, pointing out the
difference between an agreement or covenant to make a lease, and the lease
itself. When an agreement for a lease contains words of present demise, and
there are circumstances from which it may be collected that it was meant
that the tenant should have an immediate legal interest in the term, such an
agreement will amount to an actual lease; but although words of present
demise are used, if it appears on the whole, that no legal interest was
intended to pass, and that the agreement was only preparatory to a future
lease, to be made, the construction will be governed by the intention of the
parties, and the contract will be held to amount to no more than an
agreement for a lease. 2 T. R. 739. See Co. Litt. 45 b: Bac. Abr. Leases, K;
15 Vin. Abr. 94, pl. 2; 1 Leon. 129; 1 Burr. 2209; Cro. Eliz. 156; Id. 173;
12 East, 168; 2 Campb. 286; 10 John. R. 336; 15 East, 244; 3 Johns. R. 44,
383; 4 Johns. R. 74, 424; 5 T. R. 163; 12 East, 274; Id. 170; 6 East, 530;
13 East, 18; 16 Esp. R. 06; 3 Taunt. 65; 5 B. & A. 322.
5. Having made these few preliminary observations, it is proposed to
consider, 1. By what words a lease may be made. 2. Its several parts. 3. The
formalities the law requires.
6.-1 The words "demise, grant, and to farm let," are technical words
well understood, and are the most proper that can be used in making a lease;
but whatever words are sufficient to explain the intent of the parties, that
the one shall divest himself of the possession and the other come into it,
for such a determinate time, whether they run in the form of a license,
covenant, or agreement, are of themselves sufficient, and will, in
construction of law, amount to a lease for years as effectually as if the
most proper and pertinent words had been made use of for that purpose. 4
Burr. 2209; 1 Mod. 14; 11 Mod. 42; 2 Mod. 89; 3 Burr. 1446; Bac. Abr.
Leases; 6 Watts, 362; 3 M'Cord, 211; 3 Fairf. 478; 5 Rand. 571; 1 Root, 318.
7.-2. A lease in writing by deed indented consists of the following
parts, namely, 1. The premises. 2. The habendum. 3. The tenendum. 4. The
reddendum. 5. The covenants. 6. The conditions. 7. The warranty. See Deed.
8.-3. As to the form, leases may be in writing or not in writing. See
Parol Leases. Leases in writing are either by deed or without deed; a deed
is a writing sealed and delivered by the parties, so that a lease under seal
is a lease by deed. The respective parties, the lessor and lessee, whose
deed the lease is, should seal, and now in every case, sign it also. The
lease must be delivered either by the parties themselves or their attorneys,
which delivery is expressed in the attestation "sealed and delivered in the
presence of us." Almost any manifestation, however, of a party's intention
to deliver, if accompanied by an act importing such intention, will
constitute a delivery. 1 Ves. jr. 206.
9. A lease may be avoided, 1. Because it is not sufficiently formal;
and, 2. Because of some matter which has arisen since its delivery.
10.-1. It may be avoided for want of either, 1st. Proper parties and a
proper subject-matter. 2d. Writing or, printing on parchment or paper, in
those cases where the statute of frauds requires they should be in writing.
3d. Sufficient and legal words properly disposed. 4th. Reading, if desired,
before the execution. 5th. Sealing, and in most cases, signing also; or,
6th. Delivery. Without these essentials it is void from the beginning.
11.-2. It may be avoided by matter arising after its delivery; as,
1st. By erasure, interlineation, or other alteration in any material part;
an immaterial alteration made by a stranger does not vitiate it, but such
alteration made by the party himself, renders it void. 2d. By breaking or
effacing the seal, unless it be done by accident. 3d. By delivering it up to
be cancelled. 4th. By the disagreement of such whose concurrence is
necessary; as, the husband, where a married woman is concerned. 5th. By the
judgment or decree of a court of judicature.
LEASE AND RELEASE. A species of conveyance, invented by Serjeant Moore, soon
after the enactment of the statute of uses. It is thus contrived; a lease,
or rather bargain and sale, upon some pecuniary consideration, for one year,
is made by the tenant of the freehold to the lessee or bargainee. This,
without any enrollment, makes the bargainor stand seised to the use of the
bargainee, and vests in the bargainee the use of the term for one year, and
then the statute immediately annexes the possession. Being thus in
possession, he is capable of receiving a release of the freehold and
reversion, which must be made to the tenant in possession; and, accordingly,
the next day a release is granted to him.
2. The lease and release, when used as a conveyance of the fee, have
the joint operation of a single conveyance. 2 Bl. Com. 339; 4 Kent, Com.
482; Co. Litt. 207; Cruise, Dig. tit. 32, c. 11.
LEASEHOLD. The right to an estate held by lease.
LEAVE OF COURT. The grant by the court of something, which, without such
grant it would have been unlawful to do.
2. Asking leave of court to do any act, is an implied admission of
jurisdiction of the court, and, in those cases in which the objection to the
jurisdiction must be taken, if at all, by plea to the jurisdiction, and it
can be taken in no other way, the court by such asking leave becomes fully
vested with the jurisdiction. Bac. Ab. Abatement, A; Bac. Ab. Pleas, &c., E
2; Lawes, Pl. 91; 6 Pick. 391. But such admission cannot aid the
jurisdiction except in such cases.
3. The statute of 4 Ann. c. 16, s. 4, provides that it shall be lawful
for any defendant, or tenant, in any action or suit, or for any plaintiff in
replevin, in any court of record, with leave of the court, to plead as many
several matters thereto, as he shall think necessary for his defence. The
principles of this statute have been adopted by most of the states of the
Union.
4. When the defendant, in pursuance of this statute, pleads more than
one plea in bar, to one and the same demand, or thing, all of the pleas,
except the first, should purport to be pleaded with leave of the court. But
the omission is not error nor cause of demurrer. Lawes, Pl. 132; 2 Chit. Pl.
421; Story, Pl. 72, 76; Gould on Pl. c. 8, Sec. 21; Andr. 109; 3 N. H. Rep.
523.
LEDGER, commerce, accounts, evidence. A book in which are inscribed the
names of all persons dealing with the person who keeps it, and in which
there is a separate account, composed generally of one or more pages for
each. There are two parallel columns, on one of which the party named is the
debtor, and on the other the creditor, and presents a ready means of
ascertaining the state of the account. As this book is a transcript from the
day book or journal, it, is not evidence per se.
LEDGER BOOK, eccl. law. The name of a book kept in the prerogative courts in
England. It is considered as a roll of the court, but, it seems, it cannot
be read in evidence. Bac. Ab. h.t.
LEGACY. A bequest or gift of goods or chattels by testament. 2 Bl. Com. 512;
Bac. Abr. Legacies, A. See Merlin, Repertoire, mot Legs, s. 1; Swinb. 17;
Domat, liv. 4, t. 2, Sec. 1, n. 1. This word, though properly applicable to
bequests of personal estate only, has nevertheless been extended to property
not technically within its import, in order to effectuate the intention of
the testator, so as to include real property and annuities. 5 T. R. 716; 1
Burr. 268; 7 Ves. 522; Id. 391; 2 Cain. R. 345. Devise is the term more
properly applied to gifts of real estate. Godolph. 271.
2. As the testator is presumed at the time of making his will to be
inops concilii, his intention is to, be sought for, and any words which
manifest the intention to give or create a legacy, are sufficient. Godolph.
281, pt. 3, c. 22, s. 21; Com. Dig. Chancery, 3 Y 4; Bac. Abr. Legacies, B
1.
3. Legacies are of different kinds; they may be considered as general,
specific, and residuary. 1. A legacy is general, when it is so given as not
to amount to a bequest of a specific part of a testator's personal estate;
as of a sum of money generally, or out of the testator's personal estate, or
the like. 1 Rop. Leg. 256; Lown. Leg. 10. A general legacy is relative to
the testator's death; it is a bequest of such a sum or such a thing at that
time, or a direction to the executors, if such a thing be not in the
testator's possession at that time, to procure it for the legatee. Cas.
Temp. Talb. 227; Amb. 57; 4 Ves. jr. 675; 7 Ves. jr. 399.
4.-2. A specific legacy is a bequest of a particular thing, or money
specified and distinguished from all other things of the same kind; as of a
particular horse, a particular piece of plate, a particular term of years,
and the like, which would vest immediately, with the assent of the executor.
1 Rop. Leg. 149; Lownd. Leg. 10, 11; 1 Atk. 415. A specific legacy has
relation to the time of making the will; it is a bequest of some particular
thing in the testator's possession at that time, if such a thing should be
in the testator's possession at the time of his death. If it should not be
in the testator's possession, the legatee has no claim. There are legacies
of quantity in the nature of specific legacies, as of so much money with
reference to a particular fund for their payment. Touchs. 433; Amb. 310; 4
Ves. 565; 3 Ves. & Bea. 5.
5. This kind of legacy is so far general, and differs so much in effect
from a specific one, that if the funds be called in or fail, the legatees
will not be deprived of their legacies, but be permitted to receive them out
of the general assets; yet the legacies are go far specific, that they will
not be liable to abate with general legacies upon a deficiency of assets. 2
Ves. jr. 640; 5 Ves. jr. 206; 1 Mer. R. 178.
6.-3. A residuary legacy is a bequest of all the testator's personal
estate, not otherwise effectually disposed of by his will. Lown. Leg, 10;
Bac. Abr. Legacies, I.
7. As to the interest given, legacies may be considered, as absolute,
for life, or in remainder. 1. A legacy is absolute, when it is given without
condition, and is to vest immediately. See 2 Vern. 181; Ambl. 750; 19 Ves.
86; Lownd. 151; 2 Vern. 430; 1 Vern. 254; 5 Ves. 461; Com. Dig. Appendix,
Chancery IX.
8.-2. A legacy for life is sometimes given, with an executory
limitation after the death of the tenant for life to another person; in this
case, the tenant for life is entitled to the possession of the legacy, but
when it is of specific article's, the first legatee must sign and deliver to
the second, an inventory of the chattels expressing that they are in his
custody for life only, and that afterwards they are to be delivered and
remain to the use and benefit of the second legatee. 3 P. Wms. 336; 1 Atk.
471; 2 Atk. 82; 1 Bro. C. C. 279; 2 Vern. 249. See 1 Rop. Leg. 404, 5, 580.
It seems that a bequest for life, if specific of things quo ipso usu
consumuntur, is a gift of the property, and that there cannot be a
limitation over, after a life interest in such articles. 3 Meriv. 194.
9.-8. In personal property there cannot be a remainder in the strict
sense of the word, and therefore every future bequest of personal property,
whether it be preceded or not by any particular bequest, or limited on a
certain or uncertain event, is an executory bequest, and falls under the
rules by which that mode of limitation is regulated. Fearne, Cont. R. 401,
n. An executory bequest cannot be prevented or destroyed by any alteration
whatsoever, in the estate, out of which, or after, which it is limited. Id.
421; 8 Co. 96, a; 10 Co. 476. And this privilege of executory bequests,
which exempts them from being barred or destroyed, is the foundation of an
invariable rule, that the event on which an interest of this sort is
permitted to take effect, is such as must happen within a life or lives in
being, and twenty-one years, and the fraction of another year, allowing for
the period of gestation afterwards. Fearne, Cont. R. 431.
10. As to the right acquired by the legatee, legacies may be considered
as vested and contingent. 1. A vested legacy is one;, by which a certain
interest, either present or future in possession, passes to the legatee. 2.
A contingent legacy is one which is so given to a person, that it is
uncertain whether any interest will ever vest in him.
11. A legacy may be lost by abatement, ademption, and lapse. I.
Abatement, see Abatement of Legacies. 2. Ademption, see, Ademption. 3. When
the legatee dies before the testator, or before the condition upon which the
legacy is given be performed, or before the time at which it is directed to
vest in interest have arrived, the legacy is lapsed or extinguished. See
Bac. Abr. Legacies, E; Com. Dig. Chancery, 3 Y. 13; 1 P. Wms. 83; Lownd.
Leg. ch. 12, p. 408 to 415; 1 Rop. Leg. ch. 8, p. 319 to 341.
12. In Pennsylvania, by legislative enactment, no legacy in favor of a
child or other lineal descendant of any testator, shall be deemed or held to
lapse or become void, by reason of the decease of such devisee or legatee,
in the lifetime of the testator, if such devisee or legatee shall leave
issue surviving the testator, but such devise or legacy shall be good and
available, in favor of such surviving issue, with like effect, as if such
devisee or legatee had survived the testator. The testator may however,
intentionally exclude such surviving issue, or any of them. Act of March 19,
1810, 5 Smith's L. of Pa. 112.
13. As to the payment of legacies, it is proper to consider out of what
fund they are to be paid; at what time; and to whom. 1. It is a general
rule, that the personal estate is the primary fund for the payment of
legacies. When the real estate is merely charged with those demands, the
personal assets are to be applied in the first place towards their
liquidation. 1 Serg. & Rawle, 453; 1 Rop. Leg. 463.
14.-2. When legacies are given generally to persons under no
disability to receive them, the payments ought to be made at the end of a
year next after the testator's decease. 5 Binn. 475. The executor is not
obliged to pay them sooner although the testator may have directed them to
be discharged within six months after his death, because the law allows the
executor one year from the demise of the testator, to ascertain and settle
his testator's affairs; and it presumes that at the expiration of that
period, and not before, all debts due by the estate have been satisfied, and
the executor to be then able, properly to apply the residue among the
legatees according to their several rights and interests.
15. When a legacy is given generally, and is subject to a limitation
over upon a subsequent event, the divesting contingency will not prevent the
legatee from receiving his legacy at the end of the year after the
testator's death, and he is under no obligation to give security for
repayment of the money, in case the event shall happen. The principle seems
to be, that as the testator has entrusted him without requiring security, no
person has authority to require it. 1 Ves. Jr. 97; 18 Ves. 131; Lownd. on
Legacies, 403.
16. As to the persons to whom payment to be made, see, where the legacy
is given to an infant 1 Rop. Leg. 589 ;1 P. Wms. 285; 1 Eq. Cas. Abr. 300; 3
Bro. C. C. 97, edit. by Belt; 2 Atk. 80; 2 Johns. C. R. 614; where the
legacy is given to a married woman; 1 Rop. Leg. 595; Lownd. Leg 399; where
the legacy is given to a lunatic, 1 Rop. Leg. 599; where it is given to a
bankrupt; Id. 600; 2 Burr. 717.; where it is given to a person abroad, who
has not been heard of for a long time. Id. 601 Finch, R. 419; 3 Bro. C. C.
510; 5 Ves. 458; Lownd. Leg. 398.
See, generally, as to legacies; Roper on Legacies; Lowndes on Legacies;
Bac. Abr. Legacy; Com. Dig. Administration, C 3, 5; Id. Chancery, 3 A; 3 G;
8 Y 1; Id. Prohibition, G 17; Vin. Abr. Devise; Id. Executor; Swinb. 17 to
44; 2 Salk. 414 to 416.
17. By the Civil Code of Louisiana, legacies are divided into universal
legacies, legacies under an universal title, and particular legacies. 1. An
universal legacy is a testamentary disposition, by which the testator gives
to one or several persons the whole of the property which he leaves; at his
decease. Civ. Code of Lo. art. 1599.
18.-2. The legacy under an universal title, is that by which a
testator bequeaths a certain proportion of the effects of which the law
permits him to dispose, as a half, a third, or all his immovables, or all
his movables, or a fixed proportion of all his immovables, or of all his
movables. Id. 1604.
19.-3. Every legacy not included in the definition given of universal
legacies, and legacies under a universal title, is a legacy under a
particular title. Id. 1618. Copied from Code Civ. art. 1003 and 1010. See
Toullier, Droit Civil Francais, tome 5, p. 482, et seq.
LEGACY, ACCUMULATIVE. An accumulative legacy is a second bequest given by
the same testator to the same legatee, whether it be of the same kind of
thing, as money, or whether it be of different things, as, one hundred
dollars, in one legacy, and a thousand dollars in another, or whether the
sums are equal or whether the legacies are of a different nature. 2 Rop.
Leg. 19.
LEGACY, ADDITIONAL. An additional legacy is one which is given by a codicil,
besides one before given by the will; or it is an increase by a codicil of a
legacy before given by the will. An additional legacy is generally subject
to the same qualities and conditions as the original legacy. 6. Mod. 31; 2
Ves. jr. 449; 3 Mer. 154; Ward on Leg. 142.
LEGACY, ALTERNATIVE. One where the testator gives one of two things to the
legatee without designating which of them; as, one of my two horses. Vide
Election.
LEGACY, CONDITIONAL. A bequest which is to take effect upon the happening
or, not happening of a certain event. Lownd. Leg. 166; Rop. Leg. Index, tit.
Condition.
LEGACY, DEMONSTRATIVE. A demonstrative legacy is a bequest of a certain sum
of money; intended for the legatee at all events, with a fund particularly
referred to for its payment; so that if the estate be not the testator's
property at his death, the legacy will not fail: but be payable out of
general assets. 1 Rop. Leg. 153; Lownd. Leg 85; Swinb. 485; Ward on Leg.
370.
LEGACY, INDEFINITE. A bequest of things which are not enumerated or
ascertained as to numbers or quantities; as, a bequest by a testator of all
his goods, all his stocks in the funds. Lownd. on Leg. 84; Swinb. 485; Amb.
641; 1 P. Wms. 697.
LEGACY, LAPSED. A legacy is said to be lapsed or extinguished, when the
legatee dies before the testator, or before the condition upon which the
legacy is given has been performed, or before the time at which it is
directed to vest in interest has arrived. Bac. Ab. Legacy, E; Com. Dig.
Chancery, 3 Y 13; 1 P. Wms. 83. Lownd. Leg. 408 to 415; 1 Rop. Leg. 319 to
341. See, as to the law of Pennsylvania in favor of lineal descendants, 5
Smith's Laws of Pa. 112. Vide, generally, 8 Com. Dig. 502-3; 5 Toull. n.
671.
LEGACY, M0DAL. A modal legacy is a bequest accompanied with directions as to
the mode in which it should be applied for the legatee's benefit; for
example, a legacy to Titius to put him an apprentice. 2 Vern. 431; Lownd.
Leg. 151.
LEGACY, PECUNIARY, A pecuniary legacy is one of money; pecuniary legacies
are most usually general legacies, but there may be a specific pecuniary
legacy; for example, of the money in a certain bag. 1 Rop. Leg. 150, n.
LEGACY, RESIDUARY. That which is of the remainder of an estate after the
payment of all the debts and other legacies. Madd. Ch. P. 284.
LEGAL. That which is according to law. It is used in opposition to
equitable, as the legal estate is, in the trustee, the equitable estate in
the cestui que trust. Vide Powell on Mortg. Index, h.t.
2. The party who has the legal title, has alone the right to seek a
remedy for a wrong to his estate, in a court of law, though he may have no
beneficial interest in it. The equitable owner, is he who has not the legal
estate, but is entitled to the beneficial interest.
3. The person who holds the legal estate for the benefit of another, is
called a trustee; he who has the beneficiary interest and does not hold the
legal title, is called the beneficiary, or more technically, the cestui que
trust.
4. When the trustee has a claim, he must enforce his right in a court
of equity, for he cannot sue any one at law, in his own name; 1 East, 497; 8
T. R. 332; 1 Saund. 158, n. 1; 2 Bing. 20; still less can he in such court
sue his own trustee. 1 East, 497.
LEGAL ESTATE. One, the right to which may be enforced in a court of law. It
is distinguished from an equitable estate, the rights to which can be
established only in a court of equity. 2 Bouv. Inst. n. 1688.
LEGALIZATION. The act of making lawful.
2. By legalization, is also understood the act by which a judge or
competent officer authenticates a record, or other matter, in order that the
same may be lawfully read in evidence. Vide Authentication.
LEGATES. Legates are extraordinary ambassadors sent by the pope to catholic
countries to represent him, and to exercise his jurisdiction. They are
distinguished from the ambassadors of the pope who are sent to other powers.
2. The canonists divide them into three kinds, namely: 1. Legates A
latere. 2. Legati missi. 3. Legati nati.
3.-1. Legates latere hold the first rank among those who are honored
by a legation; they are always chosen from the college of cardinals, and are
called a latere, in imitation of the magistrates of ancient Rome, who were
taken from the court, or side of the emperor.
4.-2. The legati missi are simple envoys.
5.-3. The legati nati, are those who are entitled to be legates by
birth.
LEGATEE. A legatee is a person to whom a legacy is given by a last will and
testament.
2. It is proposed to consider, 1. Who may be a legatee. 2. Under what
description legatees may take.
3.-1. Who may be a legatee. In general, every person may be a
legatee. 2 Bl. Com. 512. But a person civilly dead cannot take a legacy.
II. Under what description legatees may take.
4.-1. Of legacies to legitimate children. 1. When it appears from
express declaration, or a clear inference arising upon the face of the will,
that a testator in giving a legacy to a class of individuals generally,
intended to apply the terms used by him to such persons only as answered the
description at the date of the instrument, those individuals alone will be
entitled, although if no such intention had been expressed, or appeared in
the will, every person failing within that class at the testator's death,
would have been included in the terms of the bequest. 1 Meriv. 320; and see
3 Ves. 611; Id. 609; 15 Ves. 363; Ambl. 397; 2 Cox, 291; 4 Bro. C. C. 55; 3
Bro. C. C. 148; 2 Cox, 384.
5.-2. Where a legacy is given to a class of individuals, as to
children, in general terms, and no period is appointed for the distribution
of it, the legacy is due at the death of the testator; the payment of it
being merely postponed to the end of a year after that event, for the
convenience of the executor or administrator in administering the assets.
The rights of the legatees are finally settled, and determined at the
testator's decease. 1 Ball & B. 459; 2 Murph. 178. Upon this principal, is
founded the well established rule that children in existence at that period,
or legally considered so to be, are alone entitled to participate in the
bequest. 1 Bro. C. C. 532, n.; 2 Bro. C. C. 658; 2 Cox, 190.; 1 Dick. 344;
14 Ves. 576; 1 Ves. jr. 405; 1 Cox, 68; 3 Bro. C. C. 391; Amb. 448; 1 Ves.
sen. 485; 5 Binn. 607.
6.-3. A child in ventre sa mere takes a share in a fund bequeathed to
children, under the general description of "children," or of "children
living at the testator's death." 1 Ves. sen. 85; and see 1 P. Wms. 244, 341;
2 Bro. C. C. 63; 1 Salk. 229; 2 Cox, 425; 5 Serg. & Rawle, 38. See tit. In
ventre sa mere.
7.-4. When legacies are given to a class of individuals, generally,
payable at a future period, as to the children of B, when the youngest shall
attain the age of twenty-one, or to be divided among them upon the death of
C; any child who can entitle itself under the description, at the time when
the fund is to be divided, may claim a share, viz: as well children living
at the period of distribution, although not born till after the testator's
death, as those born before, and living at the happening of that event. 1
Supp. to Ves. jr. 115, note 3, to Hill v. Chapman; 2 Supp. to Ves. jr. 157,
note 1, to Lincoln v. Pelham. This general rule may be divided into two
branches. First, when the division of the fund is postponed until a child
or children attain a particular age; as, when a legacy is given to the
children of A, at the age of twenty-one; in that case, so soon as the eldest
arrives at that period, the fund is distributable among so many as are in
existence at that time; and no child born afterwards can be admitted to a
share, because the period of division fixes the number of legatees.
Distribution is then made, and nothing remains for future partition. 1 Ball
& Beat. 459; 3 Bro. C. C. 402; 5 Binn. 607; 2 Ves. jr. 690; 3 Ves. 730; 3
Bro. C. C. 352, ed. by Belt; 14 Ves. 256; 6 Ves. 345; 10 Ves. 152; 11 Ves.
238. Second, when the distribution of the fund is deferred during the life
of a person in esse. In these cases, when the enjoyment of the thing given,
is by the testator's express declaration not to be immediate by those, among
whom it is to be finally divided, but is postponed to a particular period,
as the death of A, then the children or individuals who answer the general
description at that time, when distribution is to be made, are entitled to
take, in exclusion of those afterwards coming in esse. 1 Ves. sen. 111; 1
Bro. C. C. 386; Id. 530; Id. 582; Id. 537; 1 Atk. 509; 2 Atk. 329; 5 Ves.
136; 3 Bro. C. C. 417; 1 Cox, 327; 8 Ves. 375; 15 Ves. 122; 1 Madd. R. 290;
1 Ball & Beat. 449.
8.-5. The word "children" does not, ordinarily and properly speaking,
comprehend grandchildren or issue generally; these are included in that term
only in two cases, namely, 1. From necessity, which occurs where the will
would remain inoperative unless the sense of the word "children" were
extended beyond its natural import; and, 2. Where the testator has shown by
other words, that he did not intend to use the term children in its proper
and actual meaning, but in a more extended sense. 1 Supp. to Ves. jr. 202,
note 2, to Bristow v. Ward. In the following cases, the word children was
extended beyond its natural import from necessity. 6 Rep. 16; 10 Ves. 201; 2
Desaus. R. 123, in note. The following are instances where by using the
words children and issue, indiscriminately, the testator showed his
intention to use the former term in the sense of issue so as to entitle
grandchildren, &c. to take. 1 Ves. sen. 196; S. C. Ambl. 555; 3 Ves. 258; 3
Ves. & Bea. 68; 4 Ves. 437; 2 Supp. to Ves. jr. 158. There is another class
of cases wherein it was determined that grandchildren, &c. were not included
in the word children. 2 Vern. 107; 4 Ves. 692; 10 Ves. 195; 3 Ves. & Bea.
59; see 2 Desauss. 308.
9.-2. Of legacies to natural children. 1. Natural children unborn at
the date of the will, cannot take under a bequest to the children generally,
or to the illegitimate children of A B by Mary C; because a natural child
cannot take as the issue of a particular person, until it has acquired the
reputation of being the child of that person, which cannot be before its
birth. Co, Litt. 3, b.
10.-2. Natural children, unborn at the date of the will and described
as children of the testator or another man, to be born of a particular
woman, cannot take under such a description. 1 Peere, Wms. 529; 18 Ves. 288.
11.-3. A legacy to an illegitimate child in ventre sa mere, described
as the child of the testator or of another man, will fail, since whether the
testator or such person were or were not in truth the father, is a fact
which can only be ascertained by evidence that public policy forbids to be
admitted. 1 Meriv. 141 to 152.
12.-4. A child in ventre sa mere described merely as a child with
which the mother is enceinte, without mentioning its putative father; or if
the testator express a belief that the child is his own, and provide for it
under that impression, regardless of the chance of being mistaken; then the
child will in the first place be capable of taking and in the second, as
presumed, be also, entitled in consequence of the testator's intent to
provide for it, whether he be the father or not. 1 Meriv. 148, 152.
13.-5. Natural children in existence, having acquired by reputation
the name and character of children of a particular person, prior to the date
of the will, are capable of taking under the name of children. 1 P. Wms.
529; 1 Ves. & Bea. 467. But the term child, son, issue, and every other word
of that species, is to be considered as prima facie to mean legitimate
child, son, or issue. Id.
14.-6. Whether such children take or not depends upon the evidence of
the testator's intention, manifested by the will, to include them in the
term children; these cases are instances where the evidence of such
intention was deemed insufficient. 5 Ves. 530; 1 Ves. & Bea. 454; 6 Ves. 43,
48; 1 Ves. & Bea. 4619; and see 1 Ves. & Bea. 456; 2 East, 530, 542. In the
following, the evidence of intention was held to be sufficient. 1 Ves. &
Bea. 469; Blundell v. Dunn, cited in 1 Madd. 433; Beachcroft v. Beachcroft,
cited in 1 Madd. 430; 2 Meriv. 419.
15.-3. Of legacies of personal estate to a man and his heirs. 1. A
legacy to A and his heirs, is an absolute legacy to A, and the whole
interest of the money vests in him for his use. 4 Mad. 361. But when no
property in the bequest is given to A, and the money is bequeathed to his
heirs, or to him with a limitation to his heirs, if he die before the
testator, and the contingency happens, then if there be nothing in the will
showing the sense in which the testator made use of the word heirs, the next
of kin of A, are entitled to claim under the description, as the only
persons appointed by law to succeed to personal estate. 5 Ves. 403; 4 Ves.
649; 1 Jac. & Walk. 388.
16.-2. A bequest to the heirs of an individual, without addition or
explanation, will belong to the next of kin; the rule, however, is subject
to, alteration by the intention of the testator. If then the contents of the
will show, that by the word heirs the testator meant other persons than the
next of kin, those persons will be entitled. Ambl. 273; 1 P. Wms. 432;
Forrest, 56; 2 Atk. 89; See, also, 1 Ves. jr. 145; 4 Madd. 361; 14 Ves. 488;
1 Car. Law R. 484.
17.-4. Legacies to issue. 1. The term issue, is of very extensive
import, and when used as a word of purchase, and unconfined by any
indication of intention, will comprise all persons who can claim as
descendants from or through the person to whose issue the bequest is made;
and in order to restrain the legal sense of the term, a clear intention must
appear upon the will. 3 Ves. 257; Id. 421; 1 Meriv. 434; 13 Ves. 344.
18.-2. Where it appears clearly to be a testator's meaning to provide
for a class of individuals living at the date of his will, and he provides
against a lapse by the death of any of them in his lifetime, by the
substitution of their issue; in such case, although the word will include
all the descendants of the designated legatees, yet if any person who would
have answered the description of an original legatee when the will was made,
be then dead, leaving issue, that issue will be excluded, because the issue
of those individuals only who were capable of taking original shares, at the
date of the will, were intended to take by substitution; so that as the
person who was dead when the will was made, could never have taken an
original share, there is nothing for his issue to take in his place. 1
Meriv. 320.
19.-3. When it can be collected from the will that a testator in using
the word issue, did not intend it should be understood in its common
acceptation, the import of it will be confined to the persons whom it was
intended to comprehend. 7 Ires. 531; 3 Ves. 383; 7 Ves. 522; 1 Ves. jr. 143.
20.-5. Of legacies to relations. 1. Under a bequest to relations, none
are entitled but those, who in the case of intestacy, could have claimed
under the statute of distribution. Forrest. 251; 4 Bro. C. C. 207; 1 Bro. C.
C. 31; 3 Bro. C. C. 234; 5 Ves. 529; Ambl. 507; Dick. 380; 1 P. Wms. 327; 2
Ves. sen. 527; 19 Ves. 403; 1 Taunt. 263; 1 T. R. 435; n. See the following
cases where the bequests were to "poor relations;" 1 P. Wms. 327; 8 Serg. &
Rawle, 45; 1 Sch. & Lef. 111; "most necessitous relations;" Ambl. 636.
21.-2. To this general rule there are several exceptions, namely,
first, when the testator has delegated a power to an individual to
distribute the fund among the testator's relations according to his
discretion; in such an instance whether the bequest be made to "relations"
generally, or to "poor," or "poorest," or "most necessitous" relations, the
person may exercise his discretion in distributing the property among the
testator's kindred although they be not within the statute of distributions.
1 Scho. & Lef. 111, and 16 Ves. 43; 1 T. R. 485, n.; Ambl. 708; 16 Ves. 27,
43. Secondly. Another exception occurs where a testator has fixed ascertain
test, by which the number of relatives intended by him to participate in his
property, can be ascertained; as if a legacy be given to such of the
testator's relations as should not be worth a certain sum, in such case, it
seems, all the testator's relatives answering the description would take,
although not within the degrees of the statute of distributions. Ambl. 798.
Thirdly. Another exception to the general rule is, where a testator has
shown an intention in his will, to comprehend relations more remote than
those entitled nuder the statute; in that case his intention will prevail. 1
Bro. C. C. 32, n., and see 1 Cox, 235.
22.-3. The word "relation" or "relations," may be so qualified as to
exclude some of the next of kin from participating in the bequest; and this
will also happen when the terms of the bequest are to my "nearest
relations;" 19 Ves. 400; Coop. 275; 1 Bro. C. C. 293; and see 1 Ves. sen.
337; Ambl. 70; to testator's relations of his name 1 Ves. sen. 336; or
stock, or blood; 15 Ves. 107.
23.-4. The word relations being governed by the statute of
distributions, no person can regularly answer the description but those who
are of kin to the testator by blood, consequently relatives by marriage are
not included in a bequest to relations generally. 1 Ves. sen. 84; 3 Atk.
761; 1 Bro. C. C. 71, 294.
24.-6. Legacies to next of kin. 1. When a bequest is made to
testator's next of kin, it is understood the testator means such as are
related to him by blood. But it is not necessary that the next of kin should
be of the whole blood, the half blood answering the description of next of
kin, are equally entitled with the whole, and if nearer in degree, will
exclude the whole blood. 1 Ventr. 425; Alley. L. D. of Mar. 36; Sty. 74.
25-2. Relations by marriage are in general excluded from
participating in a legacy given to the next of kin. 18 Ves. 53; 14 Ves. 376,
381, 386; and, see 3 Ves. 244; 18 Ves. 49. But this is only a prima facie
construction, which may be repelled by the contrary intention of a testator.
14 Ves. 382.
26.-3. A testator is to be understood to mean by the expression "next
of kin," when he does not refer to the statute, or to a distribution of the
property as if he had died intestate, those persons only who should be
nearest of kin to him, to the exclusion of others who might happen to be
within the degree limited by the statute. 3 Bro. C. C. 69; 19 Ves. 404; 14
Ves. 385. See 3 Bro. C. C. 64.
27.-4. Nearest of kin will alone be entitled under a bequest to the
next of kin in equal degree. 12 Ves. 433; 1 Madd. 36.
28.-7. Legacies to legal personal representatives or to personal
representatives. 1. Where there is nothing on the face of the will to
manifest a different intention, the legal construction of the words
"personal representatives," or "legal personal representatives," is
executors or administrators of the person described. 6 Ves. 402; 6 Mead.
159. A legacy limited to the personal or legal personal representatives of
A, unexplained by anything in the will, will entitle A's executors or
administrators to it, not as representing A, or as part of his estate, or
liable to his debts, but in their own right as personae designated by the
law. 2 Mad. 155.
29.-2. In the following cases the executors or administrators were
held to be entitled under the designation of personal, or legal personal
representatives. 3 Ves. 486; Anstr. 128.
30.-3. The next of kin and not the executors or administrators, were,
in the following cases, held to be entitled under the same designation. 3
Bro. C. C. 224, approved by Lord Rosslyn in 3 Ves. 486; 3 Ves. 146; 19 Ves.
404.
31.-4. The same words were held to mean children, grandchildren, &c.
to the exclusion of those persons who technically answer the description of
"personal representatives." 3 Ves. 383.
32.-5. A husband or wife may take as such, if there is a manifest
intention in the will that they should and if either be clothed with the
character of executor or administrator of the other, the prima facie legal
title attaches to the office, which will prevail, unless an intention to the
contrary be expressed or clearly apparent in the instrument. See 14 Ves.
382; 18 Ves. 49; 3 Ves. 231; 2 Ves. sen. 84; 3 Atk. 758; 1 Rop. on H.& W.,
326; 2 Rop. on H.& W., 64.
33.-8. The construction of bequests when limited to executors and
administrators. 1. Where personal estate is given to B, his executors and
administrators, the law transfers to B the absolute interest in the legacy.
15 Ves. 537; 2 Mad. 155.
34.-2. If no interest were given to B, and the bequest were to his
executors and administrators, it should seem that the individual answering
the description would be beneficially entitled as personal designatee, in
analogy to the devise of real estate to the heir of B, without a previous
limitation to B, whose heir would take by purchase in his own right, and not
by force of the word "heir" considered as a term of limitation. 2 Mad. 155.
See 8 Com. Dig. Devise of Personal Property, xxxvi.
35:-9. Legacies to descendants. 1. A legacy to the descendants of A,
will comprehend all his children, grandchildren, &c.; and if the will direct
the bequest to be divided equally among them, they are entitled to the fund
per capita. Ambl. 97; 3 Bro. C. C. 369.
36.-10. Legacies to a family. 1. The word family, when applied to
personal property, is synonymous with "kindred," or "relations;" see 9 Ves.
323. This being the ordinary acceptation of the word family, it may
nevertheless be confined to particular relations by the context of the will;
or the term may be enlarged by it, so that the expression may, in some
cases, mean children, or next of kin, and in others may even include
relations by marriage. See 8 Ves. 604; Dy. 333; 5 Ves. 166; Hob. 33; Coop.
122; 5 M. & S. 126; 17 Ves. 263; 1 Taunt. 266; 14 Ves. 488; 9 Ves. 319; 3
Meriv. 689.
37.-11. Legacies to servants. 1. To entitle himself to a bequest "to
servants," the relation of master and servant must have arisen out of a
contract by which the claimant must have formed an engagement which entitled
the master to the service of the individual during the whole period, or each
and every part of the time for which he contracted to, serve. 12 Ves. 114; 2
Vern. 546.
38.-2. To claim as a servant, the legatee must in general be in the
actual service of the testator at the time of his death. Still a servant may
be considered by a testator as continuing in his employment, and be intended
to take under the bequest, although he quitted the testator's house previous
to his death, so as to answer the description in the instrument; and to
establish which fact declarations of the testator upon the subject cannot be
rejected; but testimony that the testator meant a servant notwithstanding
his having left the testator's service, to take a legacy bequeathed only to
servants in his employment at his death, cannot be received as in direct
opposition to the will. 16 Ves. 486, 489.
39.-12. The different periods of time at which persons answering the
descriptions of next of kin, family relations, issue, heirs, descendants and
personal representatives, (to whom legacies are given by those terms
generally, and without discrimination,) were required to be in esse, for
the purpose of participating in the legatory fund. 1. When the will
expresses or clearly shows that a testator in bequeathing to the relations,
&c. of a deceased individual, referred to such of them as were in existence
when the will was made, they only will be entitled; as if the bequest was,
"I give 1000 to the descendants of the late A B, now living," those
descendants only in esse at the date of the will can claim the legacy. Ambl.
397.
40.-2. But, in general, a will begins to speak at the death of the
testator, and consequently in ordinary cases, relations, next of kin, issue,
descendants, &c., living at that period will alone divide the property
bequeathed to them by those words. See 1 Ball &. Beat. 459; 1 Bro. C. C.
532; 3 Bro. C. C. 224; 5 Ves. 399; 1 Jac. & Walk, 388, n.; 3 Meriv. 689; 5
Binn. 607; 2 Murph. 178.
41.-3. If a testator express, or his intention otherwise appear from
his will, that a bequest to his relations, &c., living at the death of a
person, or upon the happening of any other event, should take the fund, his
next of kin only in existence at the period described, will be entitled, in
exclusion of the representatives of such of them as happened to be then
dead. 3 Ves. 486; 9 Ves. 325; 1 Atk. 469; 15 Ves. 27; 4 Vin. Abr. 485, pl.
16; 8 Ves. 38; 5 Binn. 606; see 6 Munf. 47.
42.-13. When the fund given to legatees, by the description of
"family," "relations" "next in kin," &c., is to be divided among them either
per capita, or per stirpes, or both per stirpes et capita. 1. Where the
testator gives a legacy to his relations generally, if his next of kin be
related to him in equal degree, as brothers, there being no children of a
deceased brother, the brothers will divide the fund among them in equal
shares, or per capita; each being entitled in his own right to an equal
share. So it would be if all the brothers had died before the testator, one
leaving two children, another three, &c., all the nephews and nieces would
take in equal shares, per capita, in their own rights, and not as
representing their parents; because they are sole next of kin, and related
to the testator in equal degree. Pre. Ch. 54; and see 1 P. Wms. 595; 1 Atk.
454; 3 P. Wms. 50. But if the testator's next of kin happen not to be
related to him in equal degrees, as a brother, and the children of a
deceased brother, so as that under the statute the children would take per
stirpes as representing their parent, namely, the share he would have taken
had he been living; yet if the testator has shown au intention that his next
of kin shall be entitled to his property in equal shares, i. e. per capita,
the distribution by the statute will be superseded. This may happen where
the bequest is to relations, next of kin, &c., to be equally divided among
them; or by expressions of like import. Forrest. 251; and see 1 Bro. C. C.
33; 8 Serg. & Rawle, 43; 11 Serg. & Rawle 103; 1 Murph. 383.
43.-2. Where a bequest is to relations, &c., those persons only who
are next of kin are entitled, and the statute of distributions is adopted,
not only to ascertain the persons who take, but also the proportions and
manner in which the property is to be divided; the will being silent upon
the subject, if the next of kin of the person described be not related to
him in equal degree, those most remote can only claim per stirpes, or in
right of those who would have been entitled under the statute if they had
been living. Hence it appears that taking per stirpes, always supposes an
inequality in relationship. For example, where a testator bequeaths a legacy
to his "relations," or "next of kin," and leaves at his death two children,
and three grandchildren, the children of a deceased child; the grandchildren
would take their parents' share, that is, one-third per stirpes under the
statute, as representing their deceased parent. 1 Cox, 235.
44.-3. Where a testator bequeaths personal estate to several persons
as tenants in common, with a declaration that upon all or any of their
deaths before a particular time, their respective shares shall be equally
divided among the issue or descendants of each of them, and they die before
the arrival of the period, some leaving children, others grandchildren, and
great grandchildren, and other grandchildren and more remote descendants in
such case the issue of each deceased person will take their parents share
per stirpes; and such issue, whether children only, or children and
grandchildren, &c., will divide each parent's share among them equally per
capita. 1 Ves. sen. 196.
45.-14. The effect of a mistake in the names of legatees. 1. Where the
name has been mistaken in a will or deed, it will be corrected from the
instrument, if the intention appear in the description of the legatee or
donee, or in other parts of the will or deed. For example, if a testator
give a bequest to Thomas second son of his brother John, when in fact John
had no son named Thomas, and his second son was called William; it was held
William was entitled. 19 Ves. 381; Coop. 229; and see Ambl. 175; Co. Litt.
3, a; Finch's R. 403; 3 Leon, 18. When a bequest is made to a class of
individuals, nominatim, and the name or christian name of one of them is
omitted, and the name or christian name of another is repeated; if the
context of the will show that the repetition of the name was error, and the
name of the person omitted was intended to have been inserted, the mistake
will be corrected. As where a testator gave his residuary estate to his six
grandchildren, by their christian names. The name of Ann, one of them, was
repeated, and the name of Elizabeth, another of them, was omitted. The
context of the will clearly showed the mistake which had occurred, and
Elizabeth was admitted to an equal share in the bequest. 1 Bro. C. C. 30;
see 2 Cox, 186. And is to cases where parol evidence will be received to
prove the mistakes in the names or additions of legatees, and to ascertain
the proper person, see 3 B. & A. 632 to 642; 6 T. R. 676; 2 P. Wms. 137; 1
Atk. 410: 1 P. Wms. 421; 5 Rep. 68, b; 6 Ves. 42; 7 East, 302; Ambl. 75.
46.-15. The effect of mistakes in the descriptions of legatees, and
the admission of parol evidence in those cases. 1. Where the description of
the legatee is erroneous, the error not having been occasioned by any fraud
practiced upon the testator, and there is no doubt as to the person who was
intended to be described, the mistake will not disappoint the bequest. Hence
if a legacy be given to a person by a correct name, but a wrong description
or addition, the mistaken description will not vitiate the bequest, but be
rejected; for it is a maxim that veritas nominis tollit errorem
demonstrationis. Ld. Bac. Max. reg. 25; and see 2 Ves. jr. 589; Ambl. 75; 4
Ves. 808; Plowd. 344; 19 Ves. 400.
47.-2. Wherever a legacy is given to a person under a particular
description and character which he himself has falsely assumed; or, where a
testator, induced by the false representations of third persons to regard
the legatee in a relationship which claims his bounty, bequeaths him a
legacy according with such supposed relationship, and no motive for such
bounty can be supposed, the law will not, in either case, permit the legatee
to avail himself of the description, and therefore he cannot demand his
legacy. See 4 Ves. 802; 4 Bro. C. C. 20.
48.-3. The same principle which has established the admissibility of
parol evidence to correct errors in naming legatees, authorizes its
allowance to rectify mistakes in the description of them. Ambl. 374; 1 Ves.
jr. 266; 1 Meriv. 184.
49.-4. If neither the will nor extrinsic evidence is sufficient to
dispel the ambiguity arising from the attempt to apply the description of
the legatee to the person intended by the testator, the legacy must fail
from the uncertainty of its object. 7 Ves. 508; 6 T. R. 671.
50.-16. The consequences of imperfect descriptions of, or reference to
legatees, appearing upon the face of wills, and when parol evidence is
admissible. These cases occur, 1. When a blank is left for the Christian
name of the legatee. 2. When the whole name is omitted. 3. When the testator
has merely written the initials of the name; and, 4. When legatees have been
once accurately described, but in a subsequent reference to one of them, to
take an additional bounty, the person intended is doubtful, from ambiguity
in the terms.
51.-1. When a blank is left for the Christian name of the legatee,
evidence is admissible to supply the omission. 4 Ves. 680.
52.-2. When the omission consists of the entire name of the legatee,
parol evidence cannot be admitted to supply the blank. 2 Ch. Ca. 51.; 2 Atk.
239; 3 Bro. C.C. 311.
53.-3. When a legatee is described by the initials of his name only,
parol evidence may be given to prove his identity. 3 Ves. 148. When a patent
ambiguity arises from an imperfect reference to one of two legatees
correctly described in a prior part of the will, parol evidence is admitted
to show which of them was intended, so that the additional legacy intended
for the one will depend upon the removal of the obscurity by a sound
interpretation of the whole will. 3 Atk. 257 and see 2 Ves. 217; 2 Eden,
107.
See further, upon this subject, Lownd on Leg. ch. 4; 1 Roper on Leg.
ch. 2; Com. Dig. Chancery, 3 Y; Bac. Abr. h.. t. Vin. Abr. h.t.; Nels. Abr.
h.t.; Whart. Dig. Wills, G. P.; Hamm. Dig. 756; Grimk. on Ex. ch. 5;
Toll. on Executors, ch. 4.
LEGALIS HOMO. A person who stands rectus in curia, who possesses all his
civil rights. A lawful man. One who stands rectus in curia, not outlawed nor
infamous. In this sense are the words probi et legates homines.
LEGANTINE CONSTITUTIONS. The name of a code of ecclesiastical laws, enacted
in national synods under Pope Gregory IX., and Pope Clement IV., about the
years from 1220 to 1230.
LEGATARY. One to whom anything is bequeathed; a legatee. This word is
sometimes though seldom used to designate a legate or nuncio.
LEGATION. An embassy; a mission.
2. All persons attached to a foreign legation, lawfully acknowledged by
the government of this country, whether they are ambassadors, envoys,
ministers, or attaches, are protected by the act of April 30, 1790, 1
Story's L. U. S. 83, from violence, arrest or molestation. 1 Dall. 117; 1 W.
C. C. R. 232; 11 Wheat. 467; 2 W. C. C. Rep. 435; 4 W. C. C. R. 531; 1
Miles, 366; 1 N & M. 217; 1 Bald. 240; Wheat. Int. Law, 167. Vide
Ambassador; Envoy; Minister.
LEGATORY, dead man's part or share. (q.v.) The third part of a freeman's
personal estate, which by the custom of London, in case he had a wife and
children, the freeman might always have disposed of by will. Bac. Ab.
Customs of London, D 4.
LEGISLATIVE POWER. The authority under the constitution to make laws and to
alter or repeal them.
LEGISLATOR. One who makes laws.
2. In order to make good laws, it is necessary to understand those
which are in force; the legislator ought therefore, to be thoroughly imbued
with a knowledge of the laws of his country, their advantages and defects;
to legislate without this previous knowledge is to attempt to make a
beautiful piece of machinery with one's eye shut. There is unfortunately too
strong a propensity to multiply our laws and to change them. Laws must be
yearly made, for the legislatures meet yearly but whether they are always
for the better may be well questioned. A mutable legislation is always
attended with evil. It renders the law uncertain, weakens its effects, hurts
credit, lessens the value of property, and as they are made frequently, in
consequence of some extraordinary case, laws sometimes operate very
unequally. Vide 1 Kent, Com. 227 and Le Magazin Universel, tome ii. p. 227,
for a good article against excessive legislation; Matter, De l'Influence des
Lois sur les Moeurs, et de l'Influence des Moeurs sur les Lois.
LEGISLATURE, government. That body of men in the state which has the power
of making laws.
2. By the Constitution of the United States, art. 1, s. 1, all
legislative powers granted by it are vested in a congress of the United
States, which shall consist of a senate and house of representatives.
3. It requires the consent of a majority of each branch of the
legislature in order to enact a law, and then it must be approved by the
president of the United States, or in case of his refusal, by two-thirds of
each house. Const. U. S. art. 1, s. 7, 2.
4. Most of the constitutions of the several states, contain provisions
nearly similar to this. In general, the legislature will not exercise
judicial functions; yet the use of supreme power upon particular occasions,
is not without example. Vide Judicial.
LEGITIMACY. The state of being born in wedlock; that is, in a lawful manner.
2. Marriage is considered by all civilized nations as the only source
of legitimacy; the qualities of husband and wife must be possessed by the
parents in order to make the offspring legitimate; and furthermore the
marriage must be lawful, for if it is void ab initio, the children who may
be the offspring of such marriage are not legitimate. 1 Phil. Ev. Index,
h.t.; Civ. Code L. art. 203 to 216.
3. In Virginia, it is provided by statute of 1787, "that the issue of
marriages deemed null in law, shall nevertheless be legitimate." 3 Hen. &
Munf. 228, n.
4. A conclusive, presumption of legitimacy arises from marriage and
cohabitation; and proof of the mother's irregularities will not destroy this
presumption: pater est quem nuptiae demonstrant. To rebut this presumption,
circumstances must be shown which render it impossible that the husband
should be the father, as impotency and the like. 3 Bouv. Inst. n. 300-2.
Vide Bastard; Bastardy; Paternity; Pregnancy.
LEGITIMATE. That which is according to law; as, legitimate children, are
lawful children, born in wedlock, in contradistinction to bastards;
legitimate authority, or lawful power, in opposition to usurpation.
LEGITIMATION. The act of giving the character of legitimate children to
those who were not so born.
2. In Louisiana, the Civil Code, art. 217, enacts that "children born
out of marriage, except those who are born of an incestuous or adulterous
connexion, may be legitimated by the subsequent marriage of their father and
mother whenever the latter have legally acknowledged them for their
children, either before their marriage, or by the contract of marriage
itself."
3. In most of the other states the character of legitimate children is
given to those who are not so, by special acts of assembly. In Georgia, real
estate may descend from a mother to her illegitimate children and their
representatives, and from such child, for want of descendants, to brothers
and sisters, born of the same mother, and their representatives. Prince's
Dig. 202. In Alabama, Kentucky, Mississippi, Vermont and Virginia,
subsequent marriages of parents, and recognition by the father, legitimatize
an illegitimate child and in Massachusetts, for all purposes except
inheriting from their kindred. Mass. Rev. St. 414.
4. The subsequent marriage of parents legitimatizes the child in
Illinois, but he must be afterwards acknowledged. The same rule seems to
have been adopted in Indiana and Missouri. An acknowledgment of illegitimate
children, of itself, legitimatizes in Ohio, and in Michigan and Mississippi
marriage alone between the reputed parents has the same effect. In Maine, a
bastard inherits to one who is legally adjudged, or in writing owns himself
to be the father. A bastard may be legitimated in North Carolina, on
application of the putative father to court, either where he has married the
mother, or she is dead, or married another or lives out of the state. In a
number of the states, namely, in Alabama, Connecticut, Illinois, Indiana,
Kentucky, Maine, Massachusetts, Michigan, North Carolina, Ohio, Rhode
Island, Tennessee, Vermont, and Virginia, a bastard takes by descent from
his mother, with modifications regulated by the laws of these states. 2
Hill, Ab. s. 24 to 35, and the authorities there referred to. Vide Bastard;
Bastardy; Descent.
LEGITIME, civil law. That portion of a parent's estate of which he cannot
disinherit his children, without a legal cause. The civil code of Louisiana
declares that donations inter vivos or mortis causa cannot exceed two-thirds
of the property of the disposer if he leaves at his decease a legitimate
child; one half if he leaves two children; and one-third if he leaves three
or a greater number. Under the name of children are included descendants of
whatever degree they may be; it must be understood that they are only
counted for the child they represent. Civil. Code of Lo. art. 1480.
3. Donation inter vivos or mortis causa, cannot exceed two-thirds of
the property if the disposer having no children have a father, mother, or
both. Id. art. 1481. Where there are no descendants, and in case of the
previous decease of the father and mother, donations inter vivos and mortis
causa, may, in general, be made of the whole amount of the property of the
disposer. Id. art. 1483. The Code Civil makes nearly similar provisions.
Code Civ. L. 3, t. 2, c. 3, s. 1, art. 913 to 919.
4. In Holland, Germany, and Spain, the principles of the Falcidian law,
more or less limited, have been generally adopted. Coop. Just. 616.
5. In the United States, other than Louisiana and in England, there is
no restriction on the right of bequeathing. But this power of bequeathing
did not originally extend to all a man's personal estate; on the contrary,
by the common law, as it stood in the reign of Henry II, a man's goods were
to be divided into three equal parts, one of which went to his heirs or
lineal descendants, another to his wife, and the third was at his own
disposal; or if he died without a wife, he might then dispose of one moiety,
and the other went to his children; and so e converso if he had no children,
the wife was entitled to one moiety, and he might bequeath the other; but if
he died without either wife or issue, the whole was at his own disposal.
Glanv. 1. 2, c. 6;, Bract. 1. 2, c. 26. The shares of the wife and children
were called their reasonable part. 2 Bl. Comm. 491-2. See Death's part;
Falcidian law.
LENDER, contracts. He from whom a thing is borrowed.
2. The contract of loan confers rights, and imposes duties on the
lender. 1. The lender has the right to revoke the loan at his mere pleasure;
9 Cowen, R. 687; 8 Johns. Rep. 432; 1 T. R. 480; 2 Campb. Rep. 464; and is
deemed the owner or proprietor of the thing during the period of the loan;
so that au action for a trespass or conversion will lie in favor of the
lender against a stranger, who has obtained a wrongful possession, or has
made a wrongful conversion of the thing loaned; as mere gratuitous
permission to a third person to use a chattel does not, in contemplation of
the common law, take it out of the possession of the owner. 11 Johns. Rep.
285; 7 Cowen, Rep. 753; 9 Cowen, Rep. 687; 2 Saund. Rep. 47 b; 8 Johns. Rep.
432; 13 Johns. Rep. 141, 661; Bac. Abr. Trespass, c 2; Id. Trover, C 2. And
in this the Civil agrees with the common law. Dig. 13, 6, 6, 8; Pothier,
Pret , Usage, ch. 1, Sec. 1, art. 2, n. 4; art. 3, n. 9; Ayliffe's Pand. B.
4, t. 16, p. 517; Domat, B. 1, t. 5, Sec. 1, n. 4; and so does the Scotch
law. Ersk. Pr. Laws of Scotl. B. 3, t. 1 Sec. 8.
3.-2. In the civil law, the first obligation on the part of the
lender, is to suffer the borrower to use and enjoy the thing loaned during
the time of the loan, according to the original intention. Such is not the
doctrine of the common law. 9 Cowen, Rep. 687. The lender is obliged by the
civil law to reimburse the borrower the extraordinary expenses to which he
has been put for the preservation of the thing lent. And in such a case, the
borrower would have a lien on the thing, and may detain it, until these
extraordinary expenses are paid, and the lender cannot, even by an
abandonment of the thing to the borrower, excuse himself from repayment, nor
is he excused by the subsequent loss of the thing by accident, nor by a
restitution of it by the borrower, without insisting upon repayment.
Pothier, Pret Usage, ch. 3, n. 82, 83; Dig. 13, 6, 18, 4; Ersk. Pr. Laws
of Scotl. B. 3, t. 1, Sec. 9. What would be decided at common law does not
seem very clear. Story on Bailm. Sec. 274. Another case of implied
obligation on the part of the lender by the civil law is, that he is bound
to give notice to the borrower of the defects of the thing loaned; and if he
does not and conceals them, and any injury occurs to the borrower thereby,
the lender is responsible. Dig. 13, 6, 98, 3; Poth. Pret Usage, n. 84;
Domat, Liv. 1, t. 5, s. 3, n. 3. In the civil law there is also an implied
obligation on the part of the lender where the thing has been lost by the
borrower, and after he has paid the lender the value of it, the thing has
been restored to the lender; in such case the lender must return to the
borrower either the price or thing. Dig. 13, 6, 17, 5; Poth. Id. n. 85. "The
common law seems to recognize the same principles, though," says Judge
Story, Bailm. Sec. 276, "it would not perhaps be easy to cite a case on a
gratuitous loan directly on the point." See Borrower; Commodate; Story,
Bailm. ch. 4; Domat. Liv. 2, tit. 5; 1 Bouv. Inst. n. 1078, et seq.
LESION, contracts. In the civil law this term is used to signify the injury
suffered, in consequence of inequality of situation, by one who does not
receive a full equivalent for what he gives in a commutative contract.
2. The remedy given for this injury, is founded on its being the effect
of implied error or imposition; for in every commutative contract,
equivalents are supposed to be given and received. Louis. Code, 1854.
Persons of full age, however, are not allowed in point of law to object to
their agreements as being injurious, unless the injury be excessive. Poth.
Oblig. P. 1, c. 1, s. 1, art. 3, Sec. 4. But minors are admitted to
restitution, not only against any excessive inequality, but against any
inequality whatever. Poth. Oblig. P. 1, c. 1, s. 1, art. 3, Sec. 5; Louis.
Code, art. 1858.
3. Courts of chancery relieve upon terms of redemption and set aside
contracts entered into by expectant heirs dealing for their expectancies, on
the ground of mere inadequacy of price. 1 Vern. 167; 2 Cox, 80; 2 Cas. in
Ch. 136; 1 Vern. 141; 2 Vern. 121; 2 Freem. 111; 2 Vent. 359; 2 Vern. 14; 2
Rep. in Ch. 396; 1 P. W. 312; 1 Bro. C. C. 7; 3 P. Wms. 393, n.; 2 Atk. 133;
2 Ves. 125; 1 Atk. 301; 1 Wils. 286; 1 Wils. 320; 1 Bro. P. 6. ed. Toml.
198; 1 Bro. C. C. 1; 16 Ves. 512; Sugd. on Vend. 231, n. k.; 1 Ball & B.
330; Wightw. 25; 3 Ves. & Bea. 117; 2 Swanst. R. 147, n.; Fonb. notes to the
Treatise of Equity, B, 1, c. 2, s. 9. A contract cannot stand where the
party has availed himself of a confidential situation, in order to obtain
some selfish advantage. Note to Crowe v. Ballard. 1 Ves. jun. 125; 1 Hov.
Supp. 66, 7. Note to Wharton v. May. 5 Ves. 27; 1 Hov. Supp. 378. See
Catching bargain; Fraud; Sale.
LESSEE. He to whom a lease is made. The subject will be considered by taking
a view, 1. Of his rights. 2. Of his duties.
2.-1. He has a right to enjoy the premises leased for the term
mentioned in the lease, and to use them for the purpose agreed upon. He may,
unless, restrained by the covenants in the lease, either assign it, or
underlet the premises. 1 Cruise, Dig. 174. By an assignment of the lease is
meant the transfer of all the tenant's interest in the estate to another
person; on the contrary, an underletting is but a partial transfer of the
property leased, the lessee retaining a reversion to himself.
3.-2. The duties of the lessee are numerous. First, he is bound to
fulfill all express covenants he has entered into in relation to the premises
leased; and, secondly, he is required to fulfill all implied covenants, which
the relation of lessee imposes upon him towards the lessor. For example, he
is bound to put the premises to no other use than that for which it was
hired; when a farm is let to him for common farming purposes, he cannot open
a mine and dig ore which may happen to be in the ground; but if the mine has
been opened, it is presumed both parties intended it should be used, unless
the lessee were expressly restrained; 1 Cruise, Dig. 132. He is required to
use the property in a tenant-like and proper manner; to take reasonable care
of it and to restore it at the end of his term, subject only to the
deterioration produced by ordinary wear and the reasonable use for which it
was demised. 12 M. & W. 827. Although he is not bound, in the absence of an
express covenant, to rebuild in case of destruction by fire or other
accident, yet he must keep the house in a habitable state if he received it
in good order. See Repairs. The lessee is required to restore the property
to the lessor at the end of the term.
4. The lessee remains chargeable, after an assignment of his term, as
before, unless the lessor has accepted the assignee; and even then he
continues liable in covenant on an express covenant, as for repairs, or to
pay rent; 2 Keb. 640; but not for the performance of an implied one, or, as
it is usually termed, a covenant in law. By the acceptance, he is discharged
from debt for arrears of future rent. Cro. Jac. 309, 334; Ham. on Parties,
129, 130.
Vide Estate for years; Lease;, Notice to quit: Tenant for years;
Underlease.
LESSOR. contr. He who grants a lease. Civ. Code of L. art. 2647.
LESTAGE, Eng: law. Duties paid for unlading goods in port. Harg. L. Tr. 75.
LET. Hindrance, obstacle, obstruction; as, without let, molestation or
hindrance.
TO LET. To hire, to lease; to grant the use and possession of something for
a compensation.
2. This term is applied to real estate and the words to hire are more
commonly used when speaking of personal estate. See Hire, Hirer, and Letter.
3. Letting is very similar to selling; the difference consists, in
this; that instead of selling the thing itself, the letter sells only the
use of it.
LETTER, com. law, Crim. law. An epistle; a despatch; a written message,
usually on paper, which is folded up and sealed, sent by one person to
another.
2. A letter is always presumed to be sealed, unless the presumption be
rebutted. 1 Caines, R. 682. 1
3. This subject will be considered by 1st. Taking a view of the law
relating to the transmission of letters through the post office; and, 2. The
effect of letters in making contracts. 3. The ownership of letters sent and
received.
4.-1. Letters are, commonly sent through the post office, and the law
has carefully provided for their conveyance through the country, and their
delivery to the persons to whom they are addressed. The act to reduce into
one the several acts establishing and regulating the post office department,
section 21, 3 Story's Laws United States, 1991, enacts, that if any person
employed in any of the departments of the post office establishment, shall
unlawfully detain, delay, or open, any letter, packet, bag, or mail of
letters, with which he shall be entrusted, or which shall have come to his
possession, and which are intended to be conveyed by post or, if any such
person shall secrete, embezzle, or destroy, any letter or packet entrusted
to such person as aforesaid, and which shall not contain any security for,
or assurance relating to money, as hereinafter described, every such
offender, being thereof duly convicted, shall, for every such offence, be
fined, not exceeding three hundred dollars, or imprisoned, not exceeding six
months, or both, according to the circumstances and aggravations of the
offence. And if any person, employed as aforesaid, shall secrete, embezzle,
or destroy any letter, packet, bag, or mail of letters, with which he or she
shall be entrusted, or which shall have come to his or her possession, and
are intended to be conveyed by post, containing any bank notes, or bank post
bill, bill of exchange, warrant of the treasury of the United States, note
of assignment of stock in the funds, letters of attorney for receiving
annuities or dividends, or for, selling stock in the funds, or for receiving
the interest thereof, or any letter of credit, or note for, or relating to,
payment of moneys or any bond, or warrant, draft, bill, or promissory note,
covenant, contract, or agreement whatsoever, for, or relating to, the
payment of money, or the delivery of any article of value, or the
performance of any act, matter, or thing, or any receipt, release,
acquittance, or discharge of, or from, any debt; covenant, or demand, or any
part thereof, or any copy of any record of any judgment or decree, in any
court of law or chancery, or any execution which way may have issued
thereon; or any copy of any other record, or any other article of value, or
any writing representing the same or if any such person, employed as
aforesaid, shall steal, or take, any of the same out of any letter, packet,
bag, or mail of letters, that shall come to his or her possession, such
person shall, on conviction for any such offence, be imprisoned not less
than ten years, nor exceeding twenty-one years; and if any person who shall
have taken charge of the mails of the United States, shall quit or desert
the same before such person delivers it into the post office kept at the
termination of the route, or some known mail carrier, or agent of the
general post office, authorized to receive the same, every such person, so
offending, shall forfeit and pay a sum not exceeding five hundred dollars,
for every such offence; and if any person concerned in carrying the mail of
the United States, shall collect, receive, or carry any letter, or packet,
or shall cause or procure the same to be done, contrary, to this act, every
such offender shall forfeit and pay for every such offence a sum, not
exceeding fifty dollars.
5.-2. Most contracts may be formed by correspondence; and cases not
unfrequently arise where it is difficult to say whether the concurrence of
the will of the contracting parties took place or not. In order to form a
contract both parties must concur at the same time, or there is no
agreement. Suppose, for example, that Paul of Philadelphia, is desirous of
purchasing a thousand bales of cotton, and offers by letter to Peter of New
Orleans, to buy them from him at a certain price; but on the next day he
changes his mind, and then he writes to Peter that he withdraws his offer;
or on the next day he dies; in either case, there is no contract, because
Paul did not continue in the same disposition to buy the cotton, at the time
that his offer was accepted. The precise moment when the consent of both
parties is perfect, is, in strictness, when the person who made the offer
becomes acquainted with the fact that it has been accepted. But this may be
presumed from circumstances. The acceptance must be of the same precise
terms without any variance whatever. 4 Wheat. 225; see 1 Pick. 278; 10 Pick.
326; 6 Wend. 103.
6.-3. A letter received by the person to whom it is directed, is the
qualified property of such person: but where it is of a private nature, the
receiver has no right to publish it without the consent of the writer,
unless under very extraordinary circumstances; as, for example, when it is
requisite to the defence of the character of the party who received it. 2
Ves. & B. 19; 2 Atk. 542; Amb. 737; 1 Ball. & B. 207; 1 Mart. (Lo.) R. 297;
Denisart, verbo Lettres Missives. Vide Dead Letter; Jeopardy; Mail;
Newspaper; Postage; Post Master General.
LETTER, contracts. In the civil law, locator, and in the French law,
locateur, loueur, or bailleur, is he who, being the owner of a thing, lets
it out to another for hire or compensation. See Hire; Locator; Conductor;
Story on Bailm. Sec. 369.
2. According to the French and civil law, in virtue of the contract,
the letter of a thing to hire impliedly engages that the hirer shall have
the full use and enjoyment of the thing hired, and that he will fulfill his
own engagements and trusts in respect to it, according to the original
intention of the parties. This implies an obligation to deliver the thing to
the hirer; to refrain from every obstruction to the use of it by the hirer
during the period of the bailment; to do no act which shall deprive the
hirer of the thing; to warrant the title and possession to the hirer, to
enable him to use the thing or to perform the service; to keep the thing in
suitable order and repair for the purpose of the bailment; and finally to
warrant the thing from from any fault inconsistent with the use of it. These
are the main obligations deduced from the nature of the contract, and they
seem generally founded on unexceptionable reasoning. Pothier, Louage, n. 53;
Id. n. 217; Domat, B. 1, tit. 4, Sec. 3 Code Civ. of L. tit. 9, c. 2, s. 2.
It is difficult to say how far (reasonable as they are in a general sense)
these obligations are recognized in the common law. In some respects the
common law certainly differs. See Repairs; Dougl. 744, 748; 1 Saund. 321,
32e, and ibid. note 7; 4 T. R. 318; 1 Bouv. Inst. n. 980 et seq.
LETTER, civil law. The answer which the prince gave to questions of law
which had been submitted to him by magistrates, was called letters or
epistles. See Rescripts.
LETTER OF ADVICE. comm. law. A letter containing information of any
circumstances unknown to the person to whom it is written; generally
informing him of some act done by the writer of the letter.
2. It is usual and perfectly proper for the drawer of a bill of
exchange to write a letter of advice to the drawee, as well to prevent fraud
or alteration of the bill, as to let the drawee know what provision has been
made for the payment of the bill. Chit. on Bills 185. (ed. of 1836.)
LETTER OF ATTORNEY, practice. A written instrument under seal, by which one
or more persons, called the constituents, authorize one or more other
persons called the attorneys, to do some lawful act by the latter, for or
instead, and in the place of the former. 1 Moody, Cr. Cas. 52, 70.
2. The authority given in the letter of attorney is either general, as
to transact all the business of the constituent; or special, as to do some
special business, particularly named; as, to collect a debt.
3. It is revocable or irrevocable; the former when no interest is
conveyed to the attorney, or some other person. It is irrevocable when the
constituent conveys a right to the attorney in the matter which is the
subject of it; as, when it is given as part security. 2 Esp. R. 565. Civil
Code of Lo: art. 2954 to 2970.
LETTER BOOK, commerce. A book containing the copies of letters written by a
merchant or trader to his correspondents.
2. After notice to the plaintiff to produce a letter which he admitted
to have received from the defendant, it was held that an entry by a deceased
clerk, in a letter book professing to be a copy of a letter from the
defendant to the plaintiff of the same date, was admissible evidence of the
contents, proof having been given, that according to the course of business,
letters of business written by the plaintiff were copied by this clerk and
then sent off by the post. 3 Campb. R. 305. Vide 1 Stark Ev. 356; Bouv.
Inst. n. 3139.
LETTER CARRIER. A person employed to carry letters from the post office to
the persons to whom they are addressed.
2. The act of congress of March 3, 1851, Statutes at Large of U. S. by
Minot, 591, directs, Sec. 10, That it shall be in the power of the
postmaster general, at all post offices where the postmaster's are appointed
by the president of the United States, to establish post routes within the
cities or towns, to provide for conveying letters to the post office by
establishing suitable and convenient places of deposit, and by employing
carriers to receive and deposit them in the post office; and at all such
offices it shall be in his power to cause letters to be delivered by
suitable carriers, to be appointed by him for that purpose, for which not
exceeding one or two cents shall be charged, to be paid by the person
receiving or sending the same, and all sums so received shall be paid into
the post office department: Provided, The amount of compensation allowed by
the postmaster general to carriers shall in no case exceed the amount paid
into the treasury by each town or city under the provisions of this section.
3. It is further enacted by c. xxi. s. 2, That the postmaster general
shall be, and he is hereby, authorized to appoint letter carriers for the
delivery of letters from any post office in California or Oregon, and to
allow the letter carriers who may be appointed at any such post office to
demand and receive such sum for all letters, newspapers, or other mailable
matter delivered by them, as may be recommended by the postmaster for whose
office such letter carrier may be appointed, not exceeding five cents for
every letter, two cents for every newspaper, and two cents for every ounce
of other mailable matter and the postmaster general shall be, and he is
hereby, authorized to empower the special agents of the post office
department in California and Oregon to appoint such letter carriers in their
districts respectively, and to fix the rates of their compensation within
the limits aforesaid, subject to, and until the final action of, the
postmaster general thereon. And such appointments may be made, and rates of
compensation modified from time to time, as may be deemed expedient and the
rates of compensation may be fixed, and graduated in respect to the distance
of the place of delivery from the post office for which such carriers are
appointed, but the rate of compensation of any such letter carrier shall not
be changed after his appointment, except by the order of the postmaster
general; and such letter carriers shall be subject to the provisions of the
forty-first section of the act entitled "An Act to change the organization
of the post office, department, and to provide more effectually for the
settlement of the accounts thereof," approved July second, eighteen hundred
and thirty-six, except in cases otherwise provided for in this act.
LETTER OF CREDENCE, international law. A written instrument addressed by the
sovereign or chief magistrate of a state, to the sovereign or state to whom
a public minister is sent, certifying his appointment as such, and the
general objects of his mission, and requesting that full faith and credit
may be given to what he shall do and say on the part of his court.
2. When it is given to an ambassador, envoy, or minister accredited to
a sovereign, it is addressed to the sovereign or state to whom the minister
is delegated in the case of a charge d'affaires, it is addressed by the
secretary or minister of state charged with the department of foreign
affairs to the minister of foreign affairs of the other government. Wheat.
International Law, pt. 3, c. 1, Sec. 7; Wicquefort, de l'Ambassadeur, l. 1,
Sec. 15.
LETTER OF CREDIT, contracts. An open or sealed letter, from a merchant in
one place, directed to another, in another place or country, requiring him
that if a person therein named, or the bearer of the letter, shall have
occasion to buy commodities, or to want money to any particular or unlimited
amount, either to procure the same, or to pass his promise, bill, or other
engagement for it, the writer of the letter undertaking to provide him the
money for the goods, or to repay him by exchange, or to give him such
satisfaction as he shall require, either for himself or the bearer of the
letter. 3 Chit Com. Law, 336; and see 4 Chit. Com. Law, 259, for a form of
such letter.
2. These letters are either general or special; the former is directed
to the writer's friends or correspondents generally, where the bearer of the
letter may happen to go; the latter is directed to some particular person.
When the letter is presented to the person to whom it is addressed, he
either agrees to comply with the request, in which case he immediately
becomes bound to fulfill all the engagements therein mentioned; or he
refuses in which case the bearer should return it to the giver without any
other proceeding, unless, indeed, the merchant to whom the letter is
directed is a debtor of the merchant who gave the letter, in which case he
should procure the letter to be protested. 3 Chit. Com. Law, 337; Mal., 76;
1 Beawes. 607; Hall's Adm. Pr. 14; 4 Ohio R. 197; 1 Wilc. R. 510.
3. The debt which arises on such letter, in its simplest form, when
complied with, is between the mandator and the mandant; though it may be so
conceived as to raise a debt also against the person who is supplied by the
mandatory. 1. When the letter is purchased with money by the person wishing
for the foreign credit; or, is granted in consequence of a check on his cash
account, or procured on the credit of securities lodged with the person who
granted it; or in payment of money due by him to the payee; the letter is,
in its effects, similar to a bill of exchange drawn on the foreign merchant.
The payment of the money by the person on whom the letter is granted raises
a debt, or goes into account between him and the writer of the letter; but
raises no debt to the person who pays on the letter, against him to whom the
money is paid. 2. When not so purchased, but truly an accommodation, and
meant to raise a debt on the person accommodated, the engagement, generally
is, to see paid any advances made to him, or to guaranty any draft accepted
or bill discounted and the compliance with the mandate, in such case, raises
a debt, both against the writer of the letter, and against the person
accredited. 1 Bell's Com. 371, 6th ed. The bearer of the letter of credit is
not considered bound to receive the money; he may use the letter as he
pleases, and he contracts an obligation only by receiving the money. Poth.
Contr. de Change, 237.
LETTER OF LICENSE, contracts. An instrument or writing made by creditors to
their insolvent debtor, by which they bind themselves to allow him a longer
time than he had a right to, for the payment of his debts and that they will
not arrest or molest him in his person or property till after the expiration
of such additional time.
LETTER OF MARQUE AND REPRISAL, War. A commission granted by the government
to a private individual, to take the property of a foreign state, or of the
citizens or subjects of such state, as a reparation for an injury committed
by such state, its citizens or subjects. A vessel loaded with merchandise,
on a voyage to a friendly port, but armed for its own defence in case of
attack by an enemy, is also called a letter of marque. 1 Boulay Paty, tit.
3, s. 2, p. 300.
2. By the constitution, art. 1, s. 8, cl. 11, congress has power to
grant letters of marque and reprisal. Vide Chit. Law of Nat. 73; 1 Black.
Com. 251; Vin. Ab. Prerogative, N a; Com. Dig. Prerogative, B 4; Molloy, B.
1, c. 2, s. 10; 2 Woodes. 440; 6 Rob. Rep. 9; 5 Id. 360; 2 Rob. Rep. 224.
And vide Reprisal.
LETTER missive, Engl. law. After a bill has been filed against a peer or
peeress, or lord of parliament, a petition is presented to the lord
chancellor for his letter, called a letter missive, which requests the
defendant to appear and answer to the bill. A neglect to attend to this,
places the defendant, in relation to such suit, on the same ground as other
defendants, who are not peers, and a subpoena may then issue. Newl. Pr. 9; 2
Madd. Ch. Pr. 196; Coop. Eq. Pl. 16.
LETTER of RECALL. A written document addressed by the executive of one
government to the executive of another, informing the latter that a minister
sent by the former to him, has been recalled.
LETTER OF RECOMMENDATION, com. law. An instrument given by one person to
another, addressed to a third, in which the bearer is represented as worthy
of credit. 1 Bell's Com. 371, 6th, ed.; 9 T. R. 51; 7 Cranch, Rep. 69; Fell
on Guar. c. 8; 6 Johns. R. 181; 13 Johns. R. 224; 1 Day's Cas. Er. 22; and
the article Recommendation.
LETTER OF RECREDENTIALS. A document delivered to a minister, by the
secretary of state of the government to which he was accredited. It is
addressed to the executive of the minister's country. This is in reply to
the letter of recall.
LETTERS CLOSE, Engl. law. Close letters are grants, of the king, and being
of private concern, they are thus distinguished from letters patent.
LETTERS AD COLLIGENDUM BONA DE FUNCTI, practice. In default of the
representatives and creditors to administer to the estate of an intestate,
the officer entitled to grant letters of administration, may grant to such
person as he approves, letters to collect the goods of the deceased, which
neither make him executor nor administrator; his only business being to
collect the goods and keep them in his safe custody. 2 Bl. Com. 505.
LETTERS PATENT. The name of an instrument granted by the government to
convey a right to the patentee; as, a patent for a tract of land; or to
secure to him a right which he already possesses, as a patent for a new
invention or discovery; Letters patent are a matter of record. They are so
called because they are not sealed up, but are granted open. Vide Patent.
LETTERS OF REQUEST, Eng. eccl. law, An instrument by which a judge of an
inferior court waives or remits his own jurisdiction in favor of a court of
appeal immediately superior to it.
2. Letters of request, in general, lie only where an appeal would lie,
and lie only to the next immediate court of appeal, waiving merely the
primary jurisdiction to the proper appellate court, except letters of
request from the most inferior ecclesiastical court, which may be direct to
the court of arches, although one or two courts of appeal may, by this, be
ousted of their jurisdiction as courts of appeal. 2 Addams, R. 406. The
effect of letters of request is to give jurisdiction to the appellate court
in the first instance. Id. See a form of letters of request in 2 Chit. Pr.
498, note.
LETTERS ROGATORY. A letter rogatory is an instrument sent in the name and by
the authority of a judge or court to another, requesting the latter to cause
to be examined, upon interrogatories filed in a cause depending before the
former, a witness who is within the jurisdiction of the judge or court to
whom such letters are addressed. In letters rogatory there is always an
offer on the part of the court whence they issued, to render a similar
service to the court to which they may be directed whenever required. Pet.
C. C. Rep. 236.
2. Though formerly used in England in the courts of common law, 1 Roll.
Ab. 530, pl. 13, they have been superseded by commissions of Dedimus
potestatem, which are considered to be but a feeble substitute. Dunl. Pr.
223, n.; Hall's Ad. Pr. 37. The courts of admiralty use these letters, which
are derived from the civil law, and are recognized by the law of nations.
See Foelix, Dr. Intern. liv. 2, t. 4, p. 800; Denisart, h.t.
LETTERS TESTAMENTARY, AND OF ADMINISTRATION. It is proposed to consider, 1.
Their different kinds. 2. Their effect.
2.-1. Their different kinds. 1. Letters testamentary. This is an
instrument in writing, granted by the judge or officer having jurisdiction
of the probate of wills, under his hand and official seal, making known that
on the day of the date of the said letters, the last will of the testator,
(naming him,) was duly proved before him; that the testator left goods, &c.,
by reason, whereof, and the probate of the said will, he certifies "that
administration of all and singular, the goods, chattels, rights and credits
of the said deceased, any way concerning his last will and testament, was
committed to the executor, (naming him,) in the said testament named." 2.
Letters of administration may be described to be an instrument in writing,
granted by the judge or officer having jurisdiction and power of granting
such letters, thereby giving the administrator, (naming him,)," full power
to administer the goods, chattels, rights and credits, which were of the
said deceased, in the county or, district in which the said judge or officer
has jurisdiction; as also to ask, collect, levy, recover and receive the
credits whatsoever, of the said deceased, which at the time of his death
were owing, or did in any way belong to him, and to pay the debts in which
the said deceased stood obliged, so far forth as the said goods and
chattels, rights and credits will extend, according, to the rate and order
of law." 3. Letters of administration pendente lite, are letters granted
during the pendency of a suit in relation to a paper purporting to be the
last will and testament of the deceased. 4. Letters of administration de
bonis non, are granted, where the former executor or administrator did not
administer all the personal estate of the deceased, and where he is dead or
has been discharged or dismissed. Letters of administration, durante minori
aetate, are granted where the testator, by his will, appoints an infant
executor, who is incapable of acting on account of his infancy. Such letters
remain in force until the infant arrives at an age to take upon himself the
execution of the will. Com. Dig. Administration, F; Off. Ex. 215, 216. And
see 6 Rep. 67, b; 5 Rep. 29, a; 11 Vin. Abr. 103; Bac. Ab. h.t. 6. Letters
of administration durante absentia, are granted when the executor happens to
be absent at the time when the testator died, and it is necessary that some
person should act immediately in the management of the affairs of the
estate.
3.-2. Of their effect. 1. Generally. 2. Of their effect in the
different states, when granted out of the state in which legal proceedings
are instituted.
4.-1. Letters testamentary are conclusive as to personal property,
while they remain unrevoked; as to realty they are merely prima facie
evidence of right. 3 Binn. 498; Gilb. Ev. 66;. 6 Binn. 409; Bac. Abr.
Evidence, F. See 2 Binn. 511. Proof that the testator was insane, or that
the will was forged, is inadmissible. 16 Mass. 433; 1 Lev. 236. But if the
nature of his plea allow the defendant to enter into such proof, he may show
that the seal of the supposed probate has been forged, or that the letters
have been obtained by surprise; 1 Lev. 136; or been revoked; 15 Serg. &
Rawle, 42; or that the testator is alive. 15 Serg. & Rawle, 42; 3 T. R. 130.
5.-2. The effect of letters testamentary, and of administration
granted, in some one of the United States, is different in different states.
A brief view of the law on this subject will here be given, taking the
states in alphabetical order.
6. Alabama. Administrators may sue upon letters of administration
granted in another state, where the intestate had no known place of
residence in Alabama at the time of his death, and no representative has
been appointed in the state; but before rendition of the judgment, he must
produce to the court his letters of administration, authenticated according
to the laws of the United States, and the certificate of the clerk of some
county court in this state, that the letters have been recorded in his
office. Before he is entitled to the money on the judgment, he must also
give bond, payable to the judge of the court where the judgment is rendered,
for the faithful administration of the money received. Aiken's Dig. 183
Toulm. Dig. 342.
7. Arkansas. When the deceased had no residence in Arkansas, and he
devised lands by will, or where the intestate died possessed of lands,
letters testamentary or of administration shall be granted in the county
where the lands lie, or of one of them, if they lie in several counties; and
if the deceased had no such place of residence and no lands, such letters
may be granted in the county in which the testator or intestate died, or
where the greater part of his estate may be. Rev. Stat. c. s. 2.
8. Connecticut. Letters testamentary issued in another state, are not
available in this. 3 Day 303. Nor are letters of administration. 3 Day, 74;
and see 2 Root, 462.
9. Delaware. By the act of 1721, 1 State Laws, 82, it is declared in
substance, that when any person shall die, leaving bona notabilia, in
several counties in the state and in Pennsylvania or elsewhere; and, any
person not residing in the state, obtains letters of administration out of
the state, the deceased being indebted to any of the inhabitants of the
state, for a debt contracted within the same to the value of 20, then, and
in such case, such administrator, before he can obtain any judgment in any
court of record within the state against any inhabitant thereof, by virtue
of such letters of administration, is obliged to file them with some of the
registers in this state; and must enter into bonds with sufficient sureties,
who have visible estates here, with condition to pay and satisfy all such
debts as were owing by the intestate at the time of his death to any person
residing in this state, so far as the effects of the deceased in this state
will extend. By the act of June 16, 1769, 1 State Laws, 448, it is enacted
in substance that any will in writing made by a person residing out of the
state, whereby any lands within the state are devised, which shall be proved
in the chancery in England, Scotland, Ireland, or any colony, plantation, or
island in America, belonging to the king of Great Britain, or in the
hustings, or mayor's court, in London, or in some manor court, or before
such persons as have power or authority at the time of proving such wills,
in the places aforesaid, to take probates of wills, shall be good and
available in law for granting the lands devised, as well as of the goods and
chattels bequeathed by such will. The copies of such will, and of the bill,
answer, depositions and decree, where proved in any court of chancery, or
copies of such wills and the probate thereof, where proved in any other
court, or in any office as aforesaid, being transmitted to this state, and
produced under the public or common-seal of the court or office where the
probate is taken, or under the great seal of the kingdom, colony, plantation
or island, within which such will is proved (except copies of such wills and
probates as shall appear to be revoked), are declared to be matter of
record, and to be good evidence in an any court of law or equity in this
state, to prove the gift or devise made in such will; and such probates are
declared to be sufficient to enable executors to bring their actions within
any court within this state, as if the same probates or letters testamentary
were granted here, and produced under the seal of any of the registers
offices within this state. By the 3d section of the act, it is declared that
the copies of such wills and probates so produced, and given in evidence,
shall not be returned by the court to the persons producing them, but shall
be recorded in the office of the recorder of the county where the same are
given in evidence, at the expense of the party producing the same.
10. Florida. Copies of all wills, and letters testamentary and of
administration, heretofore recorded in any public office of record in the
state, when duly certified by the keeper of said records, shall be received
in evidence in all courts of record in this state and the probate of wills
granted in any of the United States or of the territories thereof, in any
foreign country or state, duly authenticated and certified according to the
laws of the state or territory, or of the foreign country or state, where
such probate may have been granted, shall likewise be received in evidence
in all courts of record in this state.
11. Georgia. To enable executors and administrators to sue in Georgia,
the former must take out letters testamentary in the county where the
property or debt is; and administrators, letters of administration. Prince's
Dig. 238; Act of 1805, 2 Laws of Geo. 268.
12. Illinois. Letters testamentary must be taken out in this state, and
when the will is to be proved, the original must be produced; administrators
of other states must take out letters in Illinois, before they can maintain
an action in the courts of the state. 3 Grif. Reg. 419.
13. Indiana. Executors and administrators appointed in another state may
maintain actions and suits and do all other acts coming within their powers,
as such, within this state, upon producing authenticated copies of such
letters and filing them with the clerk of the court in which such suits are
to be brought. Rev. Code, c. 24, Feb. 17, 1838, sec. 44.
14. Kentucky executors and administrators appointed in other states may
sue in Kentucky "upon filing with the clerk of the court where the suit is
brought, an authenticated copy of the certificate of probate, or orders
granting letters of administration of said estate, given in such non-
resident's state." 1 Dig. Stat. 536; 2 Litt. 194; 3 Litt. 182.
15. Louisiana. Executors or administrators of other states must take out
letters of curatorship in this state. Exemplifications of wills, and
testaments are evidence. 4 Griff. L. R. 683; 8 N. S. 586.
16. Maine. Letters of administration must be taken from some court of
probate in this state. Copies of wills which have been proved in a court of
probate in any of the United States, or in a court of probate of any other
state or kingdom, with a copy of the probate thereof, under the seal of the
court where such wills have been proved, may be filed and recorded in any
probate court in this state, which recording shall be of the same force as
the recording and proving the original will. Rev. Stat. T. 9, c. 107 Sec.
20; 3 Mass, 514; 9 Mass. 337; 11 Mass. 256; 1 Pick. 80; 3 Pick. 128.
17. Maryland. Letters testamentary or of administration granted out of
Maryland have no effect in this state, except only such letters issued in
the District of Columbia, and letters granted there authorize executors or
administrators to claim and sue in this state. Act of April 1813, chap. 165.
By the act of 1839, chap. 41, when non-resident owners of any public or
state of Maryland stocks, or stocks of the city of Baltimore, or any other
corporation in this state die, their executors or administrators constituted
under the authority of the state, district, territory or country, where the
deceased resided at his death, have the same power as to such stocks, as if
they were appointed by authority of the state of Maryland. But, before they
can transfer the stocks, they must, during three months, give notice to two
newspapers published in Baltimore, of the death of the testator or
intestate, and of the "amount and description of the stock designed to be
transferred." Administration must be granted in this state, in order to
recover a debt due here to a decedent, or any of his property, with the
exceptions above noticed.
18. Massachusetts. When any person shall die intestate in any other
state or country, leaving estate to be administered within this state,
administration thereof shall be granted by the judge of probate of any
county, in which there is any estate to be administered; and the
administration, which shall be first lawfully granted shall extend to all
the estate of the deceased within the state, and shall exclude the
jurisdiction of the probate court in every other county. Rev. Stat., ch. 64,
s. 3. See 3 Mass. 514; 5 Mass. 67; 11 Mass. 256 Id. 314; 1 Pick. 81.
19. Michigan. Letters testamentary or letters of administration granted
out of the state are not of any validity in it. In order to collect the
debts or to obtain the property a deceased person who was not a resident of
the state, it is requisite to take out letters testamentary or letters of
administration from a probate court of this stafe, within whose jurisdiction
the property lies, which letters operate over all the state, and then sue in
the name of the executor or administrator so appointed. Rev. Stat. 280. When
the deceased leaves a will executed according to the laws of this state, and
the same is admitted to proof and record where he dies, a certified
transcript of the will and probate thereof, may be proved and recorded in
any county in this state, where the deceased has property real or personal,
and letters testamentary may issue thereon. Rev. Stat. 272, 273.
2O. Mississippi. Executors or administrators in another state or
territory cannot as such, sue nor be sued in this state. In order to recover
a debt due to a deceased person or his property, there must be taken out in
the state, letters of administration or letters with the will annexed, as
the case may be. These may be taken out from the probate court of the
county where the proprty is situated, by a foreign as well as a local
creditor, or any person interested in the estate of the deceased, if
properly qualified in other respects. Walker's R. 211.
21. Missouri. Letters testamentary or of administration granted in
another state have no validity in this; to maintain a suit, the executors or
administrators must be appointed under the laws of this state. Rev. Code,
Sec. 2, pt 41.
22. New Hampshire. One who has obtained letters of administrition;
Adams' Rep. 193, or letters testamentary under the authority of another
state, cannot maintain an action in New Hampshire by virtue of such letters.
3 Griff. L. R. 41.
23. New Jersey. Executors having letter testamentary, and administrators
letters of administration granted in another state, cannot sue thereon in
New Jersey, but must obtain such letters in that state as the law
prescribes. 4 Griff. L R. 1240. By the act of March 6, 1828, Harr. Comp.
195, when a will has been admitted to probate in any state or territory of
the United States, or foreign nation, the surrogate of any county or this
state is authorized, on application of the executor or any person interested,
on filing a duly exemplified copy of the will, to appoint a time not less
than thirty days, and not more than six-months distant, of which notice is
to be given as he shall direct, and if at such time, no sufficient reason be
shown to the contrary, to a omit such will to probate, and grant letters
testamentary or of administration cum testamento annexo, which shall have
the same effect as though the original will had been produced and proved
under form. If the person to whom such letters testamentary or of
administration be granted, is not a resident of this state, he is required
to give security for the faithful administration of the estate. By the
statute passed February 28, 1838, Elmer's Dig. 602, no instrument of writing
can be admitted to probate under the preceding act unless it be signed and
published by the testator as his will. See Saxton's Ch. R. 332.
24. New York. An executor or administrator appointed in another state
has no authority to sue in New York. 6 John. Ch. Rep. 353; 7 John. Ch. Rep.
45; 1 Johns. Ch. Rep. 153. Whenever an intestate, not being an inhabitant of
this state, shall die out of the state, leaving assets in several counties,
or assets shall after his death come in several counties, the surrogate of
any county in which assets shall be, shall have power to grant letters of
administration on the estate of such intestate; but the surrogate, who shall
first grant letters of administration on such estate, shall be deemed
thereby to have acquired sole and exclusive jurisdiction over such estate,
and shall be vested with the powers incidental thereto. Rev. Stat. part 2,
c. 6. tit. 2, art. 2, s. 24; 1 R. L. 455 Sec. 3; Laws, of 1823, p. 62, s. 2,
1824, p. 332.
25. North Carolina. It was decided by the court of conference, then the
highest tribunal in North Carolina, that letters granted in Georgia were
insufficient. Conf. Rep. 68. But the supreme court have since held that
letters testamentary granted in South Carolina, were sufficient to enable an
executor to sue in North Carolina. 1 Car. Law Repos. 471. See 1 Heyw. 364.
26. By the revised statutes, ch. 46, s. 6, it is provided, that "where a
testator or testatrix shall appoint any person, residing out of this state,
executor or executrix of his or her last will and testament, it shall be the
duty of the court of pleas and quarter sessions, before which the said will
shall be offered for probate, to cause the executor or executrix named
therein, to enter into bond with good and sufficient security for his or her
faithful administration of the estate of the said testator or testatrix and
for the distribution thereof in the manner prescribed by law; the penalty of
said bond shall be double the supposed amount of the personal estate of the
said testator or testatrix; and until the said executor or executrix shall
enter into such bond, he or she shall have no power nor authority to
intermeddle with the estate of the said testator or testatrix; and the court
of the county in which the testator or testatrix had his or her last usual
place of residence, shall proceed to, grant letters of administration with
the will annexed, which shall continue in force until the said executor or
executrix shall enter into bond as aforesaid. Provided nevertheless, and it
is hereby declared, that the said executor or executrix shall enter into
bond as by this act directed within the space of one year after the death of
the said testator, or testatrix, and not afterwards."
27. Ohio. Executors and administrators appointed under the authority of
another state, may, by virtue of such appointment, sue in this. Ohio Stat.
vol. 38, p. 146; Act. of March 23, 1840, which, went into effect the first
day of November following; Swan's Coll. 184.
28. Pennsylvania. Letters testamentary or of administration, or
otherwise purporting to authorize any person to intermeddle with the estate
of a decedent, granted out of the commonwealth, do not in general confer on
any such person any of the powers, and authorities possessed by an executor
or administrator, under letters granted within the state. Act of March 15,
1832 s. 6. But by the act of April 14, 1835, s. 3, this rule is declared not
to apply to any public debt or loan of this commonwealth; but such public
debt or loan shall pass and be transferable, and the dividends thereon
accrued and to accrue, be receivable in like manner and in all respects and
under the same and no other regulations, powers and authorities as were used
and practiced before the passage of the above mentioned act. And the act of
June 16, 1836, s. 3, declares that the above act of March 15, 1832, s. 6,
shall not apply to shares of stock in any bank or other incorporated
company, within this commonwealth, but such shares of stock shall pass and
be transferable, and the dividends thereon accrued and to accrue, be
receivable in like manner in all respects, and under the same regulations,
powers and authorities as were used and practiced with the loans or public
debts of the United States and were used and practiced with the loans or
public debt of this commonwealth, before the passage of the, said act of
March 15, 1832, s. 6, unless the by-laws, rules and regulations of any such
bank or corporation, shall, otherwise provide and declare. Executors and
administrators who had been lawfully appointed in some other of the United
States, might, by virtue of their letters duly authenticated by the proper
officer, have sued in this state. 4 Dall. 492; S. C. 1 Binn. 63. But letters
of administration granted by the archbishop of York, in England, give no
authority to the administrator in Pennsylvania. 1 Dall. 456.
29. Rhode Island. It does not appear to be settled whether executors and
administrators appointed in another state, may, by virtue of such
appointment, sue in this. 3 Griff. L. R. 107, 8.
30. South Carolina. Executors and administrators of other states,
cannot, as such, sue in South Carolina; they must take out letters in the
state. 3 Griff. L. R. 848.
31. Tennessee. 1. Where any person or persons may obtain, administration
on the estate of any intestate, in any one of the United States, or
territory thereof, such person or persons shall be enabled to prosecute
suits in any court in this state, in the same manner as if administration
had been granted to such person or persons by any court in the state of
Tennessee. Provided, that such person or persons shall, produce a copy of
the letters of administration, authenticated in the manner which has been
prescribed by the congress of the United States, for authenticating the
records or judicial acts of any one state, in order to give them validity in
any other state and that such letters of administration had been granted in
pursuance of, and agreeable to the laws of the state or territory in which
such letters of administration were granted.
32.-2. When any executor or executors may prove the last will and
testament of any deceased person, and take on him or themselves the
execution of said will in any state in the United States, or in any
territory thereof, such person or persons shall be enabled to prosecute
suits in any court in this state, in the same manner as if letters
testamentary had been granted to him or them, by any court within the state
of Tennessee. Provided, That such executor or executors shall, produce a
certified copy of the letters testamentary under the hand and seal of the
clerk of the court where the same were obtained, and a certificate by the
chief justice, presiding judge, or chairman of such court, that the clerk's
certificate is in due form, and that such letters testamentary had been
granted in pursuance of, and agreeable to, the laws of the state or
territory in which such letters testamentary were granted. Act of 1839,
Carr. & Nich. Comp. 78.
33. Vermont. If the deceased person shall, at the time of his death,
reside in any other state or country, leaving estate to be administered in
this state, administration thereof shall be granted by the probate court of
the district in which there shall be estate to administer; and the
administration first legally granted, shall extend to all the estate of the
deceased in this state, and shall exclude the jurisdiction of the probate
court of every other district. Rev. Stat. tit. 12, c. 47, s. 2.
34. Virginia. Authenticated copies of wills, proved according to the
laws of any of the United States, or of any foreign country, relative to any
estate in Virginia, may be offered for probate in the general court, or if
the estate lie altogether in any other county or corporation, in the
circuit, county or corporation court of such county or corporation. 3 Griff.
L. R. 345. It is understood to be the settled law of Virginia, though there
is no statutory provision on the subject, that no probate of a will or grant
of administration in another state of the Union, or in a foreign country,
and no qualification of an executor or administrator, elsewhere than in
Virginia, give any such executor or administrator any right to demand the
effects or debts of the decedent, which may happen to be within the
jurisdiction of the state. There must be a regular probate or grant of
administration and qualification of the executor or administrator in
Virginia, according to her laws. And the doctrine prevails in the federal
courts held in Virginia, as well as in the state courts. 3 Grif. Reg. 348.
LEVANT ET COUCHANT. This French phrase, which ought perhaps more properly to
be couchant et levant, signifies literally rising and lying down. In law, it
denotes that space of time which cattle have been on the land in which they
have had time to lie down and rise again, which, in general, is held to be
one night at least. 3 Bl. Com. 9; Dane's Ab. Index, h. t; 2 Lilly's Ab. 167;
Wood's Inst. 190; 2 Bouv. Inst. n. 1641.
LEVARI FACIAS, Eng. law. A writ of execution against the goods and chattels
of a clerk. Also the writ of execution on a judgment at the suit of the
crown. When issued against an ecclesiastic, this writ is in effect the writ
of fieri facias directed to the bishop of the diocese, commanding him to
cause execution to be made of the goods and chattels of the defendant in his
diocese. The writ also recites, that the sheriff had returned that the
defendant had no lay fee, or goods or chattels whereof he could make a levy,
and that the defendant was a beneficed clerk; &c. See 1, Chit. R. 428; Id.
589, for cases when it issues at the suit of the crown. This writ is also
used to recover the plaintiff's debt; the sheriff is commanded to levy,
such debt on the lands and goods of the defendant, in virtue of which he may
seize his goods, and receive the rents and profits of his lands, till
satisfaction be made to the plaintiff. 8 Bl. Com. 417; Vin. Ab. 14; Dane's
Ab. Index, h.t.
2. In Pennsylvania, this writ is used to sell lands mortgaged after a
judgment has been obtained by the mortgagee, or his assignee, against the
mortgagor, under peculiar. proceeding authorized by statute. 3 Bouv. Inst.
n. 3396.
LEVITICAL DEGREES. Those degrees of 'kindred set forth' in the eighteenth
chapter of Leviticus, within which persons are prohibited to marry. Vide
Branch; Descent; Line.
LEVY, practice. A seizure (q.v.) the raising of the money for which an
execution has been issued.
2. In order to make a valid levy on personal property, the sheriff must
have it within his power and control, or at least within his view, and if,
having it so, he makes a levy upon it, it will be good if followed up
afterwards within a reasonable time, by his taking possession in such
manner as to apprize everybody of the fact of its having been taken into
execution. 3 Rawle R. 405-6; 1 Whart. 377; 2 S. & R. 142; 1 Wash C. C. R.
29; 6 Watts, 468; 1 Whart. 116. The usual mode of making levy upon real
estate, is to describe the land which has been seised under the execution,
by metes and bounds, as in a deed of conveyance. 3 Bouv. Inst. n. 3391.
3. It is a general rule, that when a sufficient levy has been made, the
officer cannot make a second. 12 John. R. 208; 8 Cowen, R. 192.
LEVYING WAR, crim. law. The assembling of a body of men for the purpose of
effecting by force a treasonable object; and all who perform any part
however minute, or however remote from the scene of action, and who are
leagued in the general conspiracy, are considered as engaged in levying war,
within the meaning of the constitution. 4 Cranch R. 473-4; Const. art. 3, s.
3. Vide Treason; Fries' Trial; Pamphl. This is a technical term, borrowed
from the English law, and its meaning is the same as it is when used in
stat. 25 Ed. III.; 4 Cranch's R. 471; U. S. v. Fries, Pamphl. 167; Hall's
Am. Law Jo. 351; Burr's Trial; 1 East, P. C. 62 to 77; Alis. Cr. Law of
Scotl. 606; 9 C. & P. 129.
LEX. The law. A law for the government of mankind in society. Among the
ancient Romans, this word was frequently used as synonymous with right, jus.
When put absolutely, lex meant the Law of the Twelve Tables.
LEX FALCIDIA, civ. law. The name of a law which permitted a testator to
dispose of three-fourths of his property, but he could not deprive his heir
of the other fourth. It was made during the reign of Augustus, about the
year of Rome 714, on the requisition of Falcidius, a tribune. Inst. 2, 22;
Dig. 35, 2; Code, 6, 50;. and Nov. 1 and 131. Vide article Legitime, and
Coop. Just. 486; Rob. Frauds, 290, note 113.
LEX FORI, practice. The law of the court or forum.
2. The forms of remedies, the modes of proceeding, and the execution of
judgments, are to be regulated solely and exclusively, by the laws of the
place where the action is instituted or as the civilians uniformly express
it, according to the lex fori. Story, Confl. of Laws, Sec. 550; 1 Caines'
Rep. 402; 3 Johns. Ch. R. 190; 5 Johns. R. 132; 2 Mass. R. 84; 7 Mass. R.
515; 3 Conn. R. 472; 7 M. R. 214; 1 Bouv. Inst. n. 860.
LEX LOCI CONTRACTUS, contracts. The law of the place where an agreement is
made.
2. Generally, the validity of a contract is to be decided by the law of
the place where, the contract is made; if valid, there it is, in general,
valid everywhere. Story, Confl. of Laws, Sec. 242, and the cases there
cited. And vice versa if void or illegal there, it is generally void
everywhere. Id Sec. 243; 2 Kent Com. 457; 4 M. R. 584; 7 M. R. 213; 11 M. R.
730; 12 M. R. 475; 1 N. S. 202; 5 N. S. 585; 6 N. S. 76; 6 L. R. 676; 6 N.
S. 631; 4 Blackf. R. 89.
3. There is an exception to the rule as to the universal validity of
contracts. The comity of nations, by virtue of which such contracts derive
their force in foreign countries, cannot prevail in cases where it violates
the law of our own country, the law of nature, or the law of God. 2 Barn. &
Cresw. 448, 471. And a further exception may be mentioned, namely, that no
nation will regard or enforce the revenue laws of another country. Cas.
Temp. 85, 89, 194.
4. When the contract is entered into in one place, to be executed in
another, there are two loci contractus; the locus celebrate contractus, and
the locus solutionis; the former governs in everything which relates to the
mode of construing the contract, the meaning to be attached to the
expressions, and the nature and validity of the engagement; but the latter
governs the performance of the agreement. 8 N. S. 34. Vide 15 Serg. & Rawle
84; 2 Mass. R. 88; 1 Nott & M'Cord, 173; 2 Harr. & Johns. 193, 221; 2 N. H.
Rep. 42; 5 Id. 401; 2 John. Cas. 355; 5 Pardes. n. 1482; Bac. Abr. Bail in
Civil Causes, B 5; Com. Dig. 545, n.; 1 Supp. to Ves. jr. 270; 8 Ves. 198; 5
Ves. 750.
LEX LONGOBARDORUM. The name of an ancient code in force among the Lombards.
It contains many evident traces of feudal policy. It survived the
destruction of the ancient government of Lombardy by Charlemagne, and is
said to be still partially in force in some districts of Italy.
LEX MERCATORIA. That system of laws which is adopted by all commercial
nations, and which, therefore, constitutes a part of the law of the land.
Vide Law Merchant.
LEX TALIONIS. The law of retaliation an example of which is given in the law
of Moses, an eye for an eye, a tooth for a tooth, &c.
2. Jurists and writers on international law are divided as to the right
of one nation punishing with death, by way of retaliation, the citizen's or
subjects of another nation; in, the United States no example of such
barbarity has ever been witnessed but, prisoners have been kept in close
confinement in retaliation for the same conduct towards American prisoners.
Vide Rutherf. Inst. b. 2, c. 9; Mart. Law of Nat. b. 8, c. 1, s. 3, note 1
Kent, Com. 93.
3. Writers on the law of nations have divided retaliation into
vindictive and amicable: By the former are meant those acts of retaliation
which amount to a war; the latter those acts of retaliation which correspond
to the acts of the other nation under similar circumstances. Wheat. Intern.
Law, pt. 4, c. 1, Sec. 1.
LEX TERAE. The law of the land. The phrase is used to distinguish this from
the civil or Roman law.
2. By lex terrae, as used in Magna Charta, is meant one process of law,
namely, proceeding by indictment or presentment of good and lawful men. 2
Inst. 50; 19 Wend. 659; 4 Dev. R. 15. in the constitution of Tennessee, the
words "the law of the land" signify a general and public law, operating
equally upon every member of the community. 10 Yerg. 71.
LEY. This word is old French, a corruption of loi, and signifies law; for
example, Termes de la Ley, Terms of the Law. In another, and an old
technical sense, ley signifies an oath, or the oath with compurgators; as,
il tend sa ley aiu pleyntiffe. Brit. c. 27.
LEY-GAGER. Wager of Law. (q.v.)
LIABILITY. Responsibility; the state of one who is bound in law and justice
to do something which may be enforced by action. This liability may arise
from contracts either express or implied, or in consequence of torts
committed.
2. The liabilities of one man are not in general transferred to his
representative's further than to reach the estate in his hands. For example,
an executor is not responsible for the liabilities of his testator further
than the estate of the testator which has come to his hands. See Hamm. on
Part. 169, 170.
3. The husband is liable for his wife's contracts made dum sola, and
for those made during coverture for necessaries, and for torts committed
either while she was sole or since her marriage with him; but this liability
continues only during the coverture; as to her torts, or even her contracts
made before marriage; for the latter, however, she may be sued as her
executor or administrator, when she assumes that character.
4. A master is liable for the acts of his servant while in his employ,
performed in the usual course of his business, upon the presumption that
they have been authorized by him; but he is responsible only in a civil
point of view and not criminally, unless the acts have been actually
authorized by him. See Bouv. Inst. Index, h.t.; Driver; Quasi Offence;
Servant.
LIBEL, practice. A libel has been defined to be "the plaintiff's petition or
allegation, made and exhibited in a judicial process, with some solemnity of
law;" it is also, said to be "a short and well ordered writing, setting
forth in a clear manner, as well to the judge as to the defendant, the
plaintiff's or accuser's intention in judgment." It is a written statement
by a plaintiff, of his cause of action, and of the relief he seeks to obtain
in a suit. Law's Eccl. Law, 147; Ayl. Par. 346; Shelf. on M. & D. 506; Dunl.
Admr. Pr. 111; Betts. Adm. Pr. 17; Proct. Pr. h.t.; 2 Chit. Pr. 487, 533.
2. The libel should be a narrative, specious, clear, direct, certain,
not general, nor alternative. 3 Law's Eccl. Law. 147. It should contain,
substantially, the following requisites: 1. The name, description, and
addition of the plaintiff, who makes his demand by bringing his action. 2
The name, description, and addition of the defendant. 3. The name of the
judge with a respectful designation of his office and court. 4. The thing or
relief, general or special, which is demanded in the suit. 5. The grounds
upon which the suit is founded. All these things are summed up in Latin, as
follows;
Quis, quid, coram quo, quo jure petitur, et a quo,
Recte compositus quique libellus habet:
which has been translated,
Each plaintiff and defendant's name,
and eke the judge who tries the same,
The thing demanded and the right whereby
You urge to have it granted instantly:
He doth a libel write and well compose,
Who forms the same, emitting none of those.
3. The form of a libel is either simple or articulate. The simple form
is, when the cause of action is stated in a continuous narration, when the
cause of action can be briefly set forth. The articulate form, is when the
cause of action is stated in distinct allegations, or articles. 2 Law's
Eccl. Law, 148; Hall's Adm. Pr. 123; 7 Cranch, 349. The material facts
should be stated in distinct articles in the libel, with as much exactness
and attention to times and circumstances, as in a declaration at common law.
4 Mason, 541. Pompous diction and strong epithets are out of place in a
legal paper designed to obtain the admission of the opposite party of the
averments it contains, or to lay before the court the facts which the actor
will prove.
4. Although there is no fixed formula for libels and the court will
receive such an instrument from the party in such form as his own skill or
that of his counsel may enable him to give it, yet long usage has sanctioned
forms, which it may be most prudent to adopt. The parts and arrangement of
libels commonly employed are,
5.-1. The address to the court; as, To the Honorable John K. Kane,
Judge of the district court of the United States, within and for the eastern
district of Pennsylvania.
6.-2. The names and descriptions of the parties. Persons competent to
sue at common law may be parties libellants, and similar regulations obtain
in the admiralty courts and the common law courts, respecting those
disqualified from suing in their own right or name. Married women prosecute
by their husbands, or by prochein ami, when the husband has an adverse
interest to hers; minors, by guardians, tutors, or prochein ami; lunatics
and persons non compos mentis, by tutor, guardian ad litem, or committee;
the rights of deceased persons are prosecuted by executors or
administrators; and corporations are represented, and proceeded against as
at common law.
7.-3. The averments or allegations setting forth the cause of action
should be conformable to the truth, and so framed as to correspond with the
evidence. Every fact requisite to establish the libellant's right should be
clearly stated, so that it may be directly met by the opposing party by
admission, denial or avoidance; this is the more necessary because no proof
can be given, or decree rendered, not covered by and conformable to the
allegations. 1 Law's Eccl. Laws, 150; Hall's Pr. 126; Dunl. Adm. Pr. 113; 7
Cranch, 394.
8.-4. The conclusion, or prayer for relief and process; the prayer
should be for the specific relief desired; for general relief, as is usual
in bills in chancery; the conclusion should also pray for general, or
particular process. Law's Eccl. Law, 149; and see 3 Mason, R. 503.
Interrogatories are sometimes annexed to the libel; when this is the case,
there is usually a special prayer, that the defendant may be required to
answer the libel, and the interrogatories annexed and propounded. This,
however, is a dangerous practice, because it renders the answers of the
defendant evidence, which must be disproved by two witnesses, or by one
witness, corroborated by very strong circumstances.
9. The libel is the first proceeding in a suit in admiralty in the
courts of the United States. 3 Mason, R., 504. It is also used in some other
courts. Vide, generally, Dunl. Adm. Pr. ch. 3; Bett's Adm. Pr. s. 3; Shelf.
on. M. & D. 606; Hall's Adm. Pr. Index, h.t.; 3 Bl. Com. 100; Ayl. Par.
Index, h.t.; Com. Dig. Admiralty, E; 2 Roll. &b. 298.
LIBEL, libellus, criminal law. A malicious defamation expressed either in
printing or writing, or by signs or pictures, tending to blacken the memory
of one who is dead, with intent to provoke the living; or the reputation of
one who is alive, and to expose him to public hatred, contempt, or ridicule.
Hawk. b. 1, c. 73, s. 1; Wood's Inst, 444; 4 Bl. Com. 150; 2 Chitty, Cr.
Law, 867; Holt on Lib. 73; 5 Co. 125; Salk. 418; Ld. Raym. 416; 4. T. R.
126; 4 Mass. R. 168; 9 John. 214; 1 Den. Rep. 347; 2 Pick. R. 115; 2 Kent,
Com. 13. It has been defined perhaps with more precision to be a censorious
or ridiculous writing, picture or sign made with a malicious or mischievous
intent, towards government magistrates or individuals. 3 John. Cas. 354; 9
John. R. 215; 5 Binn. 340.
2. In briefly considering this offence, we will inquire, 1st. By what
mode of expression a libel may be conveyed. 2d. Of what kind of defamation
it must consist. 3d. How plainly it must be expressed. 4th. What mode of
publication is essential.
3.-1. The reduction of the slanderous matter to writing, or printing,
is the most usual mode of conveying it. The exhibition of a picture,
intimating that which in print would be libelous, is equally criminal. 2
Camp. 512; 5 Co. 125; 2 Serg. & Rawle 91. Fixing a gallows at a man's door,
burning him in effigy, or exhibiting him in any ignominious manner, is a
libel. Hawk. b. 1, c. 73, s. 2,; 11 East, R. 227.
4.-2. There is perhaps no branch of the law which is so difficult to
reduce to exact, principles, or to compress within a small compass, as the
requisites of a libel. All publications denying the Christian religion to be
true; 11 Serg. & Rawle, 394; Holt on Libels, 74; 8 Johns. R. 290; Vent. 293;
Keb. 607; all writings subversive of morality and tending to inflame the
passions by indecent language, are indictable at common law. 2 Str. 790;
Holt on Libels, 82; 4 Burr. 2527. In order to constitute a libel, it is not
necessary that anything criminal should be imputed to the party injured; it
is enough if the writer has exhibited him in a ludicrous point of view; has
pointed him out as an object of ridicule or disgust; has, in short, done
that which has a natural tendency to excite him to revenge. 2 Wils. 403;
Bacon's Abr. Libel, A 2; 4 Taunt. 355; 3 Camp. 214; Hardw. 470; 5 Binn.
349. The case of Villars v. Monsley, 2 Wils. 403, above cited, was grounded
upon the following verses, which were held to be libelous, namely:
"Old-Villers, so strong of brimstone you smell,
As if not long since you had got out of hell,
But this damnable smell I no longer can bear,
Therefore I desire you would come no more here;
You, old stinking; old nasty, old itchy, old toad,
If you come any more you shall pay for your board,
You'll therefore take this as a warning from me,
And never enter the doors, while they belong to J. P.
Wilncot, December 4, 1767."
5. Libels against the memory of the dead which have a tendency to
create a breach of the peace by inciting the friends and relatives of the
deceased to avenge the insult of the family, render their authors liable to
legal animadversion. 5 co. 123; 5 Binn. 281; 2 Chit. Cr. Law, 868; 4 T. R.
186.
6.-3. If the matter be understood as scandalous, and is calculated to
excite ridicule or abhorrence against the party intended, it is libelous,
however it may be expressed. 5 East, 463; 1 Price, 11, 17; Hob. 215; Chit.
Cr. Law, 868; 2 Campb. 512.
7.-4. The malicious reading of a libel to one or more persons, it
being on the shelves in a bookstore, as other books, for sale; and where the
defendant directed the libel to be printed, took away some and left others;
these several acts have been held to be publications. The sale of each copy;
where several copies have been sold, is a distinct publication, and a fresh
offence. The publication must be malicious; evidence of the malice may be
either express or implied. Express proof is not necessary: for where a man
publishes a writing which on the face of it is libelous, the law presumes he
does so from that malicious intention which constitutes the offence, and it
is unnecessary, on the part of the prosecution, to prove any circumstance
from which malice may be inferred. But no allegation, however false and
malicious, contained in answers to interrogatories, in affidavits duly made,
or any other proceedings, in courts of justice, or petitions to the
legislature, are indictable. 4 Co. 14; 2 Burr. 807; Hawk. B. 1, c. 73, s. 8;
1 Saund. 131, n. 1; 1 Lev. 240; 2 Chitty's Cr. Law, 869; 2 Serg. & Rawle,
23. It is no defence that the matter published is part of a document printed
by order of the house of commons. 9 A. &E. 1.
8. The publisher of a libel is liable to be punished criminally by
indictment; 2 Chitty's Cr. Law, 875; or is subject to an action on the case
by the party grieved. Both remedies may be pursued at the same time. Vide)
generally, Holt on Libels; Starkie on Slander; 1 Harr. Dig. Case, I.; Chit.
Cr. L. Index, h.t.; Chit. Pr. Index, h.t.
LIBEL OF ACCUSATION. A term used in Scotland to designate the instrument
which contains the charge against a person accused of a crime. Libels are of
two kinds, namely, indictments and criminal letters.
2. Every libel assumes the form of what is termed in logic, a
syllogism. It is first stated that some particular kind of act is criminal;
as, that "theft is a crime of a heinous nature, and severely punishable."
This proposition is termed the major. It is next stated that the person
accused is guilty, of the crime so named, "actor, or art and part." This,
with the narrative of the manner in which, and the time when the offence was
committed, is called the, minor proposition of the libel. The conclusion is
that all or part of the facts being proved, or admitted by confession, the
panel "ought to be punished with the pains of the law, to deter others from
committing the like crime in all time coming." Burt Man. Pub. L. 300, 301.
LIBELLANT. The party who fires a libel in a chancery or admiralty case,
corresponds to the plaintiff in actions in the common law courts, is called
the libellant.
LIBELLEE. A party against whom a libel has been filed in chancery
proceedings, or in admiralty, corresponding to the defendant in a common law
suit.
LIBER. A book; a principal subdivision of a literary work: thus, the
Pandects, or Digest of the Civil Law, is divided into fifty books.
LIBER ASSISARUM. The book of assizes, or pleas of the crown; being the fifth
part of the Year Books. (q.v.)
LIBER FEUD RUM. A code of the feudal law, which was compiled by direction of
the emperor Frederick Barbarossa, and published in Milan, in 1170. It was
called the Liber Feudorum, and was divided into five books, of which the
first, second, and some fragments of the other's still exist and are printed
at the end of all the modern editions of the Corpus Juris Civilis. Giannone,
B. 13, c, 3; Cruise's Dig. Prel. Diss. c. 1, Sec. 31.
LIBER HOMO. A freeman lawfully competent to act as a juror. Raym. 417; Keb.
563.
LIBERATE, English practice. A writ which issues on lands, tenements, and
chattels, being returned under an extent on a statute staple, commanding the
sheriff to deliver them to the plaintiff, by the extent and appraisement
mentioned in the writ of extent, and in the sheriff's return thereto. See
Com dig. Statute Staple, D 6.
LIBERATION, civil law. This term is synonymous with payment. Dig. 50, 16,
47. It is the extinguishment of a contract by which he who was bound
become's free, or liberated. Wolff, Dr. de la Nat. Sec. 749.
LIBERTI, LIBERTINI. These two words were, at different times, made to
express among the Romans, the condition of those who, having been slaves,
had been made free. 1 Brown's Civ. Law, 99. There is some distinction
between these words. By libertus, was understood the freedman, when
considered in relation to his patron, who had bestowed liberty upon him and
he was called libertinus, when considered in relation to the state he
occupied in society since his manumission. Lec. El. Dr. Rom. Sec. 93.
LIBERTY. Freedom from restraint. The power of acting as one thinks fit,
without any restraint or control, except from the laws of nature.
2. Liberty is divided into civil, natural, personal, and political.
3. Civil liberty is the power to do whatever is permitted by the
constitution of the state and the laws of the land. It is no other than
natural liberty, so far restrained by human laws, and no further, operating
equally upon all the citizens, as is necessary and expedient for the general
advantage of the public. 1 Black. Com. 125; Paley's Mor. Phil. B. 6, c.5;
Swifts Syst. 12
4. That system of laws is alone calculated to maintain civil liberty,
which leaves the citizen entirely master of his own conduct, except in those
points in which the public good requires some direction and restraint. When a
man is restrained in his natural liberty by no municipal laws but those
which are requisite to prevent his violating the natural law, and to promote
the greatest moral and physical welfare of the community, he is legally
possessed of the fullest enjoyment of his civil rights of individual
liberty. But it must not be inferred that individuals are to judge for
themselves how far the law may justifiably restrict their individual
liberty; for it is necessary to the welfare of the commonwealth, that the
law should be obeyed; and thence is derived the legal maxim, that no man may
be wiser than the law.
5. Natural liberty is the right which nature gives to all mankind, of
disposing of their persons and property after the manner they judge most
consonant to their happiness, on condition of their acting within the limits
of the law of nature, and that they do not in any way abuse it to the
prejudice of other men. Burlamaqui, c. 3, s. 15; 1 Bl. Com. 125.
6. Personal liberty is the independence of our actions of all other
will than our own. Wolff, Ins. Nat. Sec. 77. It consists in the power of
locomotion, of changing situation, or removing one's person to whatever
place one's inclination may direct, without imprisonment or restraint,
unless by due course of law. 1 Bl. Com. 134.
7. Political liberty may be defined to be, the security by which, from
the constitution, form and nature of the established government, the
citizens enjoy civil liberty. No ideas or definitions are more
distinguishable than those of civil and political liberty, yet they are
generally confounded. 1 Bl. Com. 6, 125. The political liberty of a state is
based upon those fundamental laws which establish the distribution of
legislative and executive powers. The political liberty of a citizen is that
tranquillity of mind, which is the effect of an opinion that he is in
perfect security; and to insure this security, the government must be such
that one citizen shall not fear another.
8. In the English law, by liberty is meant a privilege held by grant or
prescription, by which some men enjoy greater benefits than ordinary
subjects. A liberty is also a territory, with some extraordinary privilege.
9. By liberty or liberties, is understood a part of a town or city, as
the Northern Liberties of the city of Philadelphia. The same as Fanbourg.
(q.v.)
LIBERTY OF THE PRESS. The right to print and publish the truth, from good
motives, and for justifiable ends. 3 Johns. Cas. 394.
2. This right is secured by the constitution of the United States.
Amendments, art. 1. The abuse of the right is punished criminally, by
indictment; civilly, by action. Vide Judge Cooper's Treatise on the Law of
Libel, and the Liberty of the Press, passim; and article Libel.
LIBERTY OF SPEECH. The right given by the constitution and the laws to
public support in speaking facts or opinions.
2. In a republican government like ours, liberty of speech cannot be
extended too far, when its object is the public good. It is, therefore,
wisely provided by the constitution of the United States, that members of
congress shall not be called to account for anything said in debate; and
similar provisions are contained in the constitutions of the several states
in relation to the members of their respective legislatures. This right,
however, does not extend beyond the mere speaking; for if a member of
congress were to reduce his speech to writing and cause it to be printed, it
would no longer bear a privileged character and he might be held responsible
for a libel, as any other individual. Bac. Ab. Libel, B.* See Debate.
3. The greatest latitude is allowed by the common law to counsel; in
the discharge of his professional duty he may use strong epithets, however
derogatory to other persons they may be, if pertinent to the cause, and
stated in his instructions, whether the thing were true or false. But if he
were maliciously to travel out of his case for the purpose of slandering
another, he would be liable to an action, and amenable to a just and often
more efficacious punishment inflicted by public opinion. 3 Chit. Pr. 887. No
respectable counsel will indulge himself with unjust severity; and it is
doubtless the duty of the court to prevent any such abuse.
LIBERUM TENEMENTUM, pleading. The name of a plea in an action of trespass,
by which the defendant claims the locus in quo to be his soil and freehold,
or the soil and freehold of a third person, by whose command he entered. 2
Salk. 453; 7 T. R. 355; 1 Saund. 299, b, note.
LIBERUM TENEMENTUM, estate. The same as, freehold, (q.v.) or frank
tenement. 2 Bouv. Inst. n. 1690.
LICENSE, contracts. A right given by some competent authority to do an act,
which without such authority would be illegal. The instrument or writing
which secures this right, is also called a license. Vide Ayl. Parerg, 353;
15 Vin. Ab. 92; Ang. Wat. Co. 61, 85.
2. A license is express or implied. An express license is one which in
direct terms authorizes the performance of a certain act; as a license to
keep a tavern given by public authority.
3. An implied license is one which though not expressly given, may be
presumed from the acts of the party having a right to give it. The following
are examples of such licenses: 1. When a man knocks at another's door, and
it is opened, the act of opening the door licenses the former to enter the
house for any lawful purpose. See Hob. 62. A servant is, in consequence of
his employment, licensed to admit to the house, those who come on his
master's business, but only such persons. Selw. N. P. 999; Cro. Eliz. 246.
It may, however, be inferred from circumstances that the servant has
authority to invite whom he pleases to the house, for lawful purposes. See 2
Greenl. Ev. Sec. 427; Entry.
4. A license is either a bare authority, without interest, or it is
coupled with an interest. 1. A bare license must be executed by the party to
whom it is given in person, and cannot be made over or assigned by him to
another; and, being without consideration, may be revoked at pleasure, as
long as it remains executory; 39 Hen. VI. M. 12, page 7; but when carried
into effect, either partially or altogether, it can only be rescinded, if in
its nature it will admit of revocation, by placing the other side in the
same situation in which he stood before he entered on its execution. 8 East,
R. 308; Palm. 71; S. C. Poph. 151; S. C. 2 Roll. Rep. 143, 152.
5.-2. When the license is coupled with an interest the authority
conferred is not properly a mere permission, but amounts to a grant, which
cannot be revoked, and it may then be assigned to a third person. 5 Hen. V.,
M. 1, page 1; 2 Mod. 317; 7 Bing. 693; 8 East, 309; 5 B. & C. 221; 7 D. & R.
783; Crabb on R. P. Sec. 521 to 525; 14 S. & R 267; 4 S. & R. 241; 2 Eq.
Cas. Ab. 522. When the license is coupled with an interest, the formalities
essential to confer such interest should be observed. Say. R. 3; 6 East, R.
602; 8 East, R. 310, note. See 14 S. & R. 267; 4 S. & R. 241; 2 Eq. Cas. Ab.
522; 11 Ad. & El. 34, 39; S. C. 39 Eng, C. L. R. 19.
LICENSE, International law. An authority given by one of two belligerent
parties, to the citizens or subjects of the other, to carry on a specified
trade.
2. The effects of the license are to suspend or relax the rules of war
to the extent of the authority given. It is the assumption of a state of
peace to the extent of the license. In the country which grants them,
licenses to carry on a pacific commerce are stricti juris, as being
exceptions to the general rule; though they are not to be construed with
pedantic accuracy, nor will every small deviation be held to vitiate the
fair effect of them. 4 Rob. Rep. 8; Chitty, Law of Nat. 1 to 5, and 260; 1
Kent, Com. 164, 85.
LICENSE, pleading. The name of a plea of justification to an action of
trespass. A license must be specially pleaded, and cannot, like liberum
tenementum, be given in evidence under the general issue. 2. T. R. 166, 108
LICENSEE. One to whom a license has been given. 1 M. Q. & S. 699 n.
LICENTIA CONCORDANDI, estates, conveyancing, practice. When an action is
brought for the purpose of levying a fine, the defendant, knowing himself to
be in the wrong, is supposed to make overtures of accommodation to the
plaintiff, who accepts them; but having given pledges to prosecute his suit,
applies to the court, upon the return of the writ of covenant, for leave to
make the matter up; this, which is readily granted, is called the, licentia
concordandi. 5 Rep. 39; Cruise, Dig. tit. 35, c. 2, 22.
LICENTIA LOQUENDI. Imparlance. (q.v.)
LICENTIOUSNESS. The doing what one pleases without regard to the rights of
others; it differs from liberty in this, that the latter is restrained by
natural or positive law, and consists in doing whatever we please, not
inconsistent, with the rights of others, whereas the former does not respect
those rights. Wolff, Inst. Sec. 84.
LICET SAEPIUS REQUISITUS, pleading. practice. Although often requested. It
is usually alleged in the declaration that the defendant, licet saepius
requisitus, &c., he did not perform the contract, the violation of which is
the foundation of the action. The allegation is generally sufficient when a
request is not parcel of the contract. Indeed, in such cases it is
unnecessary even to lay a general request, for the bringing of the suit is
itself a sufficient request. 1 Saund. 33, n. 2; 2 Saund, 118 note 3; Plowd.
128; 1 Wils. 33; 2 H. BI. 131; 1 John. Cas. 99, 319; 7 John. R. 462; 18
John. R. 485; 3 M. & S. 150. Vide Demand.
LICET. It is lawful; not forbidden by law. Id omne licitum est, quod non est
legibus prohibitum; quamobrem, quod, lege permittente, fit, poenam non
meretur.
LICITATION. A sale at auction; a sale to the highest bidder.
LIDFORD LAW. Vide Lynch Law.
TO LIE. That which is proper, is fit; as, an action on the case lies for an
injury committed without force; corporeal hereditaments lie in livery, that
is, they pass by livery; incorporeal hereditaments lie in grant, that is,
pass by the force of the grant, and without any livery. Vide Lying in grant.
LIEGE, from the Latin, ligare, to bind. The bond subsisting between the
subject and chief, or lord and vassal, binding the one to protection and
just government, the other to tribute and due subjection. The prince or
chief is called liege lord; the subjects liege men. The word is now applied
as if the liegance or bond were only to attach the people to the prince.
Stat. 8 Hen. VI. c. 10; 14 Hen. VIII. c. 2; 1 Bl. Com. 367.
LIEGE POUSTIE, Scotch law. The condition or state of a person who is in his
ordinary health and capacity, and not a minor, nor cognosced as an idiot or
madman, nor under interdiction. He is then said to be in liege poustie, or
in legitima potestati, and he has full power of disposal of his property. 1
Bell's Com. 85, 5th ed.; 6 Clark & Fin. 540. Vide Sui juris.
LIEN, contracts. In its most extensive signification, this term includes
every case in which real or personal property is charged with the payment of
any debt or duty; every such charge being denominated a lien on the
property. In a more limited sense it is defined to be a right of detaining
the property of another until some claim be satisfied. 2 East 235; 6 East
25; 2 Campb. 579; 2 Meriv. 494; 2 Rose, 357; 1 Dall. R. 345.
2. The right of lien generally arises by operation of law, but in some
cases it is created by express contract.
3. There are two kinds of lien; namely, particular and general. When a
person claims a right to retain property, in respect of money or labor
expended on such particular property, this is a particular lien. Liens may
arise in three ways: 1st. By express contract. 2d. From implied contract, as
from general or particular usage of trade. 3d. By legal relation between the
parties, which may be created in three ways; When the law casts an
obligation on a party to do a particular act, and in return for which, to
secure him payment, it gives him such lien; 1 Esp. R. 109; 6 East, 519; 2
Ld. Raym. 866; common carriers and inn keepers are among this number. 2.
When goods are delivered to a tradesman or any other, to expend his labor
upon, he is entitled to detain those goods until he is remunerated for the
labor which he so expends. 2 Roll. Ab. 92; 3 M. & S. 167; 14 Pick. 332; 3
Bouv. Inst. n. 2514. 3. When goods have been saved from the perils of the
sea, the salvor may detain them until his claim for salvage is satisfied;
but in no other case has the finder of goods, a lien. 2 Salk. 654; 5 Burr.
2732; 3 Bouv. Inst. n. 2518. General liens arise in three ways; 1. By the
agreement of the parties. 6 T. R.14; 3 Bos. & Pull. 42. 2. By the general
usage of trade. 3. By particular usage of trade. Whitaker on Liens 35; Prec.
Ch. 580; 1 Atk. 235; 6 T. R. 19.
4. It may be proper to consider a few, general principles: 1. As to the
manner in which a lien may be acquired. 2. To what claims liens properly
attach. 3. How they may be lost. 4. Their effect.
5.-1. How liens may be acquired. To create a valid lien, it is
essential, 1st. That the party to whom or by whom it is acquired should have
the absolute property or ownership of the thing, or, at least, a right to
vest it. 2d. That the party claiming the lien should have an actual or
constructive, possession, with the assent of the party against whom the
claim is made. 3 Chit. Com. Law, 547; Paley on Ag. by Lloyd, 137; 17 Mass.
R. 197; 4 Campb. R. 291; 3 T. R. 119 and 783; 1 East, R. 4; 7 East, R. 5; 1
Stark. R. 123; 3 Rose, R. 955; 3 Price, R. 547; 5 Binn. R. 392. 3d. That the
lien should arise upon an agreement, express or implied, and not be for a
limited or specific purpose inconsistent with the express terms, or the
clear, intent of the contract; 2 Stark. R. 272; 6 T. R. 258; 7 Taunt. 278;.
5 M. & S. 180; 15 Mass. 389, 397; as, for example, when goods are deposited
to be delivered to a third person, or to be transported to another place.
Pal. on Ag. by Lloyd, 140.
6.-2. The debts or claims to which liens properly attach. 1st. In
general, liens properly attach on liquidated demands, and not on those which
sound only in damages; 3 Chit. Com. Law, 548; though by an express contract
they may attach even in such a case as, where the goods are to be held as an
indemnity against a future contingent claim or damages. Ibid. 2d. The claim
for which the lien is asserted, must he due to the party claiming it in his
own right, and not merely as agent of a third person. It must be a debt or
demand due from the very person for whose benefit the party is acting, and
not from a third person, although the goods may be claimed through him. Pal.
Ag. by Lloyd, 132.
7.-3. How a lien may be lost. 1st. It may be waived or lost by any
act or agreement between the parties, by which it is surrendered, or becomes
inapplicable. 2d. It may also be lost by voluntarily parting with the
possession of the goods. But to this rule there are some exceptions; for
example, when a factor by lawful authority sells the goods of his principal,
and parts with the possession under the sale he is not, by this act, deemed
to lose his lien, but it attaches to the proceeds of the sale in the hands
of the vendee.
8.-4. The effect of liens. In general, the right of the holder of the
lien is confined to the mere right of retainer. But when the creditor has
made advances on the goods of a factor, he is generally invested with the
right to sell. Holt's N P. Rep. 383; 3 Chit. Com. Law, 551; 2 Liverm. Ag.
103; 2 Kent's Com. 642, 3d ed. In some cases where the lien would not confer
power to sell, a court of equity would decree it. 1 Story Eq. Jur. Sec. 566;
2 Story, Eq. Jur. Sec. 1216; Story Ag. Sec. 371. And courts of admiralty
will decree a sale to satisfy maritime liens. Ab. Sh. pt. 3, c10. Sec. 2;
Story, Ag. Sec. 371.
9. Judgments rendered in courts of record are generally liens on the
real estate of the defendants or parties against whom such judgments are
given. In Alabama, Georgia and Indiana, judgment is a lien; in the last
mentioned state, it continues for ten years from January 1, 1826, if it was
rendered from that time; if, after ten years from the rendition of the
judgment, and when the proceedings are stayed by order of the court, or by
an agreement recorded, the time of its suspension is not reckoned in the ten
years. A judgment does not bind lands in Kentucky, the lien commences by the
delivery of execution to the sheriff, or officer. 4 Pet. R. 366; 1 Dane's R.
360. The law seems to be the same in Mississippi. 2 Hill. Ab. c. 46, s. 6.,
In New Jersey, the judgments take priority among themselves in the order the
executions on them have been issued. The lien of a judgment and the decree
of a court of chancery continue a lien in New York for ten years, and bind
after acquired lands. N. Y. Stat. part 3, t. 4, s. 3. It seems that a
judgment is a lien in North Carolina, if an elegit has been sued out, but
this is perhaps not settled. 2 Murph. R. 43. The lien of a judgment in Ohio
is confined to the county, and continues only for one year, unless revived.
It does not, per se, bind after acquired lands. In Pennsylvania, it
commences with the rendering of judgment, and continues five years from the
return day of that term. It does not, per se, bind after acquired lands. It
may be revived by scire facias, or an agreement of the parties, and terre
tenants, written and filed. In South Carolina and Tennessee a judgment is
also a lien. In the New England states, lands are attached by mesne process
or on the writ, and a lien is thereby created. See 2 Hill. Ab. c. 46.
10. Liens are also divided into legal and equitable. The former are
those which may be enforced in a court of law; the latter are valid only in
a court of equity. The lien which the vendor of real estate has on the
estate sold, for the purchase money remaining unpaid, is a familiar example
of an equitable lien. Math. on Pres. 392. Vide Purchase money. Vide,
generally, Yelv. 67, a; 2 Kent, Com. 495; Pal Ag. 107; Whit. on Liens; Story
on Ag. ch. 14, Sec. 351, et seq: Hov. Fr. 35.
11. Lien of mechanics and material men. By virtue of express statutes in
several of the states, mechanics and material men, or persons who furnish
materials for the erection of houses or other buildings, are entitled to a
lien or preference in the payment of debts out of the houses and buildings
so erected, and to the land, to a greater or lessor extent, on which they
are erected. A considerable similarity exists in the laws of the different
states which have legislated on this subject.
12. The lien generally attaches from the commencement of the work or the
furnishing of materials, and continues for a limited period of time. In some
states, a claim must be filed in the office of the clerk or prothonotary of
the court, or a suit brought within a limited time. On the sale of the
building these liens are to be paid pro rata. In some states no lien is
created unless the work done or the goods furnished amount to a certain
specified sum, while in others there is no limit to the amount. In general,
none but the original contractors can claim under the law; sometimes,
however, sub-contractors have the same right.
13. The remedy is various; in some states, it is by scire facias on the
lien, in others, it is by petition to the court for an order of sale: in
some, the property is subject to foreclosure, as on a mortgage; in others,
by a common action. See 1 Hill. Ab. ch. 40, p. 354, where will be found an
abstract of the laws of the several states, except the state of Louisiana;
for the laws of that state, see Civ. Code of Louis. art. 2727 to 2748. See
generally, 5 Binn. 585; 2 Browne, R. 229, n. 275; 2 Rawle R. 316; Id. 343;
3 Rawle, R. 492; 5 Rawle R. 291; 2 Whart. R. 223; 2 S. & R. 138; 14 S. & R.
32; 12 S. & R. 301; 3 Watts, R. 140, 141; Id. 301; 5 Watts, R. 487; 14 Pick.
P,. 49; Serg. on Mech. Liens.
LIEU, place. In lieu of, instead, in the place of.
LIEUTENANT. This word has now a narrower meaning than it formerly had; its
true meaning is a deputy, a substitute, from the French lieu, (place or
post) and tenant (holder). Among civil officers we have lieutenant
governors, who in certain cases perform the duties of governors; (vide, the
names of the several states,) lieutenants of police, &c. Among military men,
lieutenant general was formerly the title of a commanding general, but now
it signifies the degree above major general. Lieutenant colonel, is the
officer between the colonel and the major. Lieutenant simply signifies the
officer next below a captain. In the navy, a lieutenant is the second
officer next in command to the captain of a ship.
LIFE. The aggregate of the animal functions which resist death. Bichat.
2. The state of animated beings, while they possess the power of
feeling and motion. It commences in contemplation of law generally as soon
as the infant is able to stir in the mother's womb; 1 Bl. Com. 129; 3 Inst.
50; Wood's Inst. 11; and ceases at death. Lawyers and legislators are not,
however, the best physiologists, and it may be justly suspected that in fact
life commences before the mother can perceive any motion of the foetus. 1
Beck's Med. Jur. 291.
3. For many purposes, however, life is considered as begun from the
moment of conception in ventre sa mere. Vide Foetus. But in order to acquire
and transfer civil rights the child must be born alive. Whether a child is
born alive, is to be ascertained from certain signs which are always
attendant upon life. The fact of the child's crying is the most certain.
There may be a certain motion in a new born infant which may last even for
hours, and yet there may not be complete life. It seems that in order to
commence life the child must be born with the ability to breathe, and must
actually have breathed. 1 Briand, Med. Leg. 1ere partie, c. 6, art. 1.
4. Life is presumed to continue at least till one hundred years. 9
Mart. Lo. R. 257 See Death; Survivorship.
5. Life is considered by the law of the utmost importance, and its most
anxious care is to protect it. 1 Bouv. Inst. n. 202-3.
LIFE ANNUITY. An annual income to be paid during the continuance of a
particular life.
LIFE-ASSURANCE. An insurance of a life, upon the payment of a premium; this
may be for the whole life, or for a limited time. On the death of the person
whose life has been insured, during the time for which it is insured, the
insurer is bound to pay to the insured. the money agreed upon. See 1 Bouv.
Inst. n. 1231.
LIFE-ESTATE. Vide Estate for life, and 3 Saund. 338, h. note; 2 Kent Com.
285; 4 Kent, Com. 23.; 1 Hov. Suppl. to Ves. jr. 371, 381; 2 Id. 45, 249,
330, 340, 398, 467; 8 Com. Dig. 714.
LIFE-RENT, Scotch law. A right to use and enjoy a thing during life, the
substance of it being preserved. A life-rent cannot, therefore, be
constituted upon things which perish in the use; and though it may upon
subjects which gradually wear out by time, as household furniture, &c., yet
it is generally applied to heritable subjects. Life-rents are divided into
conventional and legal.
2.-1. The conventional are either simple or by reservation. A simple
life-rent, or by a separate constitution, is that which is granted by the
proprietor in favor of another. A life-rent by reservation is that which a
proprietor reserves to himself, in the same writing by which he conveys the
fee to another.
3.-2. Life-rents, by law, are the terce and the courtesy. See Terce;
Courtesy.
LIGAN or LAGAN. Goods cast into the sea tied to a buoy, so that they may be
found again by the owners, are so denominated. When goods are cast into the
sea in storms or shipwrecks, and remain there without coming to land, they
are distinguished by the barbarous names of jetsam, (q.v.) flotsam, (q.v.)
and ligan. 5 Rep. 108; Harg. Tr. 48; 1 Bl. Com. 292.
LIGEANCE. The true and faithful obedience of a subject to his sovereign, of
a citizen to his government. It signifies also the territory of a sovereign.
See Allegiance.
LIGHTERMAN. The owner or manager of a lighter. A lighterman is considered as
a common Carrier. See Lighters.
LIGHTERS, commerce. Small vessels employed in loading and unloading larger
vessels.
2. The owners of lighters are liable, like other common carriers for
hire; it is a term of the contract on the part of the carrier or lighterman,
implied by law, that his vessel is tight and fit for the purpose or
employments for which he offers and holds it forth to the public; it is the
immediate foundation and substratum of the contract that it is so: the law
presumes a promise to that effect on the part of the carrier without actual
proof, and every principle of sound policy and public convenience requires
it should be so. 5 East, 428; Abbott on Sh. 225; 1 Marsh. on Ins. 254; Park
on Ins. 23; Wesk. on Ins. 328.
LIGHTS. Those openings in a wall which are made rather for the admission of
light, than to look out of. 6 Moore, C. B. 47; 9 Bing. R. 305; 1 Lev. 122;
Civ. Code of Lo. art. 711. See Ancient Lights; Windows.
LIMBS. Those members of a man which may be useful to him in flight, and the
unlawful deprivation of which by another amounts to a mayhem at common law.
1 Bl. Com. 130. If a man, se defendendo, commit homicide, he will be
excused; and if he enter into an apparent contract, under a well-grounded
apprehension of losing his life or limbs, he may afterwards avoid it. 1 Bl.
130.
LIMITATION, estates. When an estate is so expressly confined and limited by
the words of its creation, that it cannot endure for a longer time than till
the contingency shall happen, upon which the estate is to fail, this is
denominated a limitation; as, when land is granted to a man while he
continues unmarried, or until the rents and profits shall have made a
certain sum, and the like; in these cases the estate is limited, that is, it
does not go beyond the happening of the contingency. 2 Bl. Com. 155; 10 Co.
41; Bac. Ab. Conditions, H; Co. Litt. 236 b; 4 Kent. Com. 121; Tho. Co.
Litt. Index, h.t.; 10 Vin. Ab. 218; 1 Vern. 483, n. 4; Ves. Jr. 718.
2. There is a difference between a limitation and a condition. When a
thing is given until an event shall arrive, this is called a limitation; but
when it is given generally, and the gift is to be defeated upon the
happening of an uncertain event, then the gift is conditional. For example,
when a man gives a legacy to his wife, while, or as long as, she shall
remain his widow, or until she shall marry, the estate is given to her only
for the time of her widowhood and, on her marriage, her right to it
determines. Bac. Ab. Conditions, H. But if, instead of giving the legacy to
the wife, as above mentioned, the gift had been to her generally with a
proviso, or on condition that she should not marry, or that if she married
she should forfeit her legacy, this would be a condition, and such condition
being in restraint of marriage, would be void.
LIMITATION, remedies. A bar to the alleged right of a plaintiff to recover
in an action, caused by the lapse of a certain time appointed by law; or it
is the end of the time appointed by law, during which a party may sue for
and recover a right. It is a maxim of the common law, that a right never
dies and, as far as contracts were concerned, there was no time of
limitation to actions on such contracts. The only limit there was to the
recovery in cases of torts was the death of one of the parties; for it was a
maxim actio personalis moritur cum persona. This unrestrained power of
commencing actions at any period, however remote from the original cause of
action, was found to encourage fraud and injustice; to prevent which, to
assure the titles to land, to quiet the possession of the owner, and to
prevent litigation, statutes of limitation were passed. This was effected by
the statutes of 32 Hen. VIII. c. 2, and 21 Jac, I. c. 16. These statutes
were adopted and practiced upon in this country, in several of the states,
though they are now in many of the states in most respects superseded by the
enactments of other acts of limitation.
2. Before proceeding to notice the enactments on this subject in the
several states, it is proper to call the attention of the reader to the
rights of the government to sue untrammeled by any statue of limitations,
unless expressly restricted, or by necessary implication included. It has
therefore been decided that the general words of a statute ought not to
include the government, or affect its rights, unless the construction be
clear and indisputable upon the text of the act; 2 Mason's R. 314; for no
laches can be imputed to the government. 4 Mass. R. 528; 2 Overt. R. 352; 1
Const. Rep. 125; 4 Henn. & M. 53; 3 Serg. & Rawle, 291; 1 Bay's R. 26. The
acts of limitation passed by the several states are not binding upon the
government of the United States, in a suit in the courts of the United
States. 2 Mason's R. 311.
3. For the following abstract of the laws of the United States and of
the several states, regulating the limitations of actions, the author has
been much assisted by the appendix of Mr. Angell's excellent treatise on the
Limitation of Actions.
4. United States. 1. On contracts. All suits on marshals' bonds shall
be commenced and prosecuted within six years after the right of action shall
have accrued, and not after; saving the rights of infants, femes covert, and
persons non compos mentis, so that they may sue within three years after
disability removed. Act of April 10, 1806, s. 1.
5.-2. On legal proceedings. Writs of error must be brought within
five years after judgment or decree complained of; saving in cases of
disability the right to bring them five years after its removal. Act of
September 24, 1789, s. 22. And the like limitation is applied to bills of
review. 10 Wheat. 146.
6.-3. Penalties. Prosecutions under the revenue laws, must be
commenced within three years. Act of March 2, 1799, Act of March 1, 1823.
Suits for penalties respecting copyrights, within two years. Act of April
29, 1802, s. 3. Suits in violation of the provisions of the act of 1818,
respecting the slave trade, must be commenced within five years. Act of
April 20, 1818, s. 9.
7.-4. Crimes. Offences punishable by a court martial must be
proceeded against within two years unless the person by reason of having
absented himself, or some other manifest impediment, has not been amenable
to justice within that period. The act of April 30, 1790, s. 31, limits the
prosecution and trial of treason or other capital offence, willful murder or
forgery excepted, to three years next after their commission; and for
offences not capital to two years, unless the party has fled from justice. 2
Cranch, 336.
8. Alabama. 1. As to real estate. 1. After twenty years after title
accrued, no entry can be made into lands. 2. No action for the recovery of
land can be maintained, if commenced after thirty years after title accrued.
3. Actions on claims by virtue of any title which has not been confirmed by
either of the boards of commissioners of the United States, for adjusting
land claims &c., and not recognized or confirmed by any act of congress, are
barred after three years; there is a proviso as to lands formerly in West
Florida, and in favor of persons under disabilities.
9.-2. As to personal actions. 1. Actions of trespass, quare clausum
fregit; trespass; detinue; trover; replevin for taking away of goods and
chattels; of debt, founded on any lending or contract, without specialty, or
for arrearages of rent on a parol demise of account and upon the case,
(except actions for slander, and such as concern the trade of merchandise
between merchant and merchant, their factors or agents, are to be commenced
within six years next after the cause of action accrued, and not after.
10.-2. Actions of trespass for assaults, menace, battery, wounding and
imprisonment, or any of them, are limited to two years.
11.-3. Actions for words to one year.
12.-4. Actions of debt or covenant for rent or arrearages of rent,
founded upon any lease under seal, or upon any single or penal bill for the
payment of money only, or on any obligation with condition for the payment
of money only, or upon any award under the hands and seals of arbitrators,
are to be commenced within sixteen years after the cause of action accrued,
and not after; but if any payment has been made on the same at any time,
then sixteen years from the time of such payment.
13.-5. Judgments cannot be revived after twenty years.
14.-6. A new action must be brought within one year when the former
has been reversed on error, or the judgment has been arrested.
15.-7. Actions on book accounts must be commenced within three years,
except in the case of trade or merchandise between merchant and merchant,
their factors or agents.
16.-8. Writs of error must be sued out within three years after final
judgment.
17. Arkansas. 1. As to lands. No action for the recovery of any lands or
tenements, or for the recovery of the possession thereof, shall be
maintained, unless it appears that the plaintiff, his ancestor, predecessor,
or grantor, was seised or possessed of the promises in question within ten
years before the commencement of such suit. Act of March 3, 1838, s. 1. Rev.
Stat. 527. No entry upon lands or tenements shall be deemed sufficient or
valid as a claim, unless an action be commenced thereon within one year
after such entry, and within ten years from the time when the right to make
such entry descended and accrued. Id. s. 2. The right of any person to the
possession of any lands or tenements, shall not be impaired or affected by a
descent cast in consequence of the death of any person in possession of such
estate. Id. s. 3.
18. The savings are as follows: If any person entitled to commence any
action in the preceding sections specified, or to make an entry, be, at the
time such title shall first descend or accrue; first, within the age of
twenty-one years; second, insane; third, beyond the limits of the state; or,
fourth, a married woman; the time during which such disabilities shall
continue, shall not be deemed any portion of the time in this act limited
for the commencement of such suit, or the making of such entry; but such
person may bring such action, or make such entry, after the time so limited,
and within five years after such disability is removed, but not after that
period. Id. S. 4. If any person entitled to commence any such action, or
make such entry, die during the continuance of such disability specified in
the preceding section, and no determination or judgment be had of the title,
right, or action to him accrued, his heirs may commence such action, or make
such entry, after the time in this act limited for that purpose, and within
five years after his death, and not after that period. Id. s. 5, Rev. Stat.
527.
19.-2. As to personal actions. 1. The following actions shall be
commenced within three years after the cause of action shall accrue: first,
all actions founded upon any contract, obligation, or liability, (not under
seal,) excepting such as are brought upon the judgment or decree of some
court of record of the United States, of this, or some other state; second,
all actions upon judgments rendered in any court not being a court of
record; third, all actions for arrearages of rent, (not reserved by some
instrument under seal); fourth, all actions of account, assumpsit, or on the
case, founded on any contract or liability, expressed or implied; fifth, all
actions of trespass on lands, or for libels; sixth, all actions for taking
or injuring any goods or, chattels. Id. s. 6, Rev. Stat. 527, 528.
20.-2. The following actions shall be commenced within one year after
the cause of action shall accrue, and not after: first, all special actions
on the case for criminal conversation, assault and battery and false
imprisonment; second, all actions for words spoken, slandering the character
of another; third, all words spoken whereby special damages are sustained.
Id. s. 7.
21.-3. All actions against sheriffs or other officers, for the escape
of any person imprisoned on civil process, shall be commenced within one
year from the time of such escape, and not after. Id. s. 8.
22.-4. All actions against sheriffs and coroners, upon any liability
incurred by them, by doing any act in their official capacity, or by the
omission of any official duty, except for escapes, shall be brought within
two years after the cause of action shall have accrued, and not thereafter.
Id. s. 9.
23.-5. All actions upon penal statutes where the penalty or any part
thereof, goes to the state, or any county, or person suing for the same,
shall be commenced within two years after the offence shall have been
committed, or the cause of action shall have accrued. Id. s. 10.
24.-6. All actions not included in the foregoing provisions, shall be
commenced within five years after the cause of action shall have accrued.
Id. s. 11.
25.-7. In all actions of debt, account or assumpsit, brought to
recover any balance due upon a mutual, open account current, the cause of
action shall be deemed to have accrued from the time of the last item proved
in such account Id. s. 12.
26. The savings are as follows: 1. If any person entitled to bring any
action in the preceding seven sections mentioned, except in actions against
sheriffs for escapes, and actions of slander, shall, at the time of action
accrued, be either within the age of twenty-one years, or insane, or beyond
the limits of this state, or a married woman, such person shall be at
liberty to bring such action within the time specified in this act, after
such disability is removed. Id. s. 13.
27.-2. If any person entitled to bring an action in the preceding
provisions of this act specified, die before the expiration of the time
limited for the commencement of such suit, and such cause of action shall
survive to his representatives, his executors or administrators may, after
the expiration of such time, and within one year after such death, commence
such suit, but not after that period. Id. s. 19.
28.-3. If at any time when any cause of action specified in this act
accrues against any person, he be out of the state, such action may be
commenced within the times herein respectively limited, after the return of
such person into the state; and if, after such cause of action shall have
accrued, such person depart from, and reside out of the state, the time of
his absence shall not be deemed or taken as any part of the time limited for
the commencement of such action. Id. s. 20. If any person, by leaving the
county absconding or concealing himself, or any other improper act of his
own, prevent the commencement of any action in this act specified, such
action may be commenced within the times respectively limited, after the
commencement of such action shall have ceased to be so prevented. Id. s. 26.
29.-4. None of the provisions of this act shall apply to suit's
brought to enforced payment on bills, notes, or evidences of debt issued by
any bank, or moneyed corporation. Id. s. 18.
30. Connecticut. 1. As to lands. No person can make an entry into lands
after fifteen years next after his right or title first accrued to the same;
and no such entry is valid unless an action is afterwards commenced
thereupon, and is prosecuted with effect within one year next after the
making thereof; there is a proviso in favor of disabled persons, who may sue
within five years after the disability has been removed.
31.-2. As to personal actions. 1. In actions on specialties and
promissory notes, not negotiable, the limitation is seventeen years, with a
saving that "persons legally incapable to bring an action on such bond or
writing at the accruing of the right of action, may bring the same within
four years after becoming legally capable."
32.-2. Actions of account, of debt on book, on simple contract, or
assumpsit, founded on an implied contract, or upon any contract in writing,
not under seal, (except promissory notes not negotiable,) within six years,
saving as above three years.
33.-3. In trespass on the case, six years, but no savings.
34.-4. Actions founded upon express contracts not reduced to writing;
upon trespass; or upon the case for word; three years and no savings.
35.-5. Actions founded on penal statutes one year after the commission
of the offence.
36.-6. A new suit must be commenced within one year after reversal of
the former, or when it was arrested.
37. Delaware. 1. As to lands. Twenty years of adverse possession of land
is a bar. The general principles of the English law on this subject, have
been adopted in this state.
38.-2. As to personal actions. All actions of trespass quare clausum
fregit; of detinue; trover and replevin, for taking away goods or chattels;
upon account and upon the case; (other than actions between merchant and
merchant, their factors and servants, relating to merchandise;) upon the
case for words; of debt grounded upon any lending or contract without
specially; of debt for arrearages of rent; and all actions of trespass,
assault, battery, menace, wounding or imprisonment, shall be commenced and
sued within three years next after the cause of such action or suit accrues,
and not after.
39. The 2d section of the same act contains a saving, in favor of
persons who, at the time of the cause of action accrued, are within the age
of twenty-one years; femes covert; persons of insane memory, or imprisoned.
Such persons must bring their actions within one year next after the removal
of such disability as aforesaid.
40. In the 3d section of the same act, provision is made, that no person
not keeping a day book, or regular book of accounts, shall be admitted to
prove or require payment of any account of longer standing than one year
against the estate of any person dying within the state, or if it consist of
many particulars, unless every charge therein shall have accrued within
three years next before the death of the deceased, and unless the truth and
justice thereof shall be made to appear by one, sufficient witness; and in
case of a regular book of accounts, unless such account shall have accrued
or arisen within three years before the death of the deceased person.
41. In section 6th, there is a saving of the rights or demands of
infants, femes covert, persons of insane memory, or imprisoned, so their
accounts be proved and their claims prosecuted within one year after the
removal of such disability.
42. By a supplementary act, it is declared, that nothing contained in
this act, shall extend to any intercourse between merchant and merchant,
according to the usual course of mercantile business nor to any demands
founded on mortgages: bonds, bills, promissory notes, or settlements under
the hands of the parties concerned.
43. All actions upon administration, guardian and testamentary bonds,
must be commenced within six years after passing the said bonds; and actions
on sheriff's recognizances, within seven years after the entering into such
recognizances, and not after; saving in all these cases, the rights of
infants, femes covert, persons of insane memory, or imprisoned, of bringing
such actions on administration, guardian or testamentary bonds, within three
years after the removal of the disability, and on sheriff's recognizances
within one year after such disability removed.
44. No appeal can be taken from any interlocutory order, or final
decrees of the chancellor, but within one year next after making and signing
the final decree, unless the person entitled to such appeal be an infant,
feme covert, non compos mentis, or a prisoner.
45. No writ of error, can be brought upon any judgment, but within five
years after the confessing, entering or rendering thereof, unless the person
entitled to such writ, be an infant, feme covert, non compos mentis, or a
prisoner, and then within five years exclusive of the time of such
disability. Constitution, article 5, s. 13.
46. There is no saving in favor of foreigners or citizens of other
states. The courts of this state have adopted the general principles of the
English law.
47. Florida. 1. As to lands. Writs of formedon in descender, remainder,
or reverter, must be brought within twenty years. Act of Nov. 10, 1828, sec.
1, Duval; 154. Infants, femes covert, persons non compos mentis, or
prisoners, may. sue within ten years after disability is removed. Id. s. 2.
A writ of right on seisin of ancestor or predecessor within fifty years;
other possessory action on seisin of ancestor or predecessor, within forty
years; real action on plaintiff's possession or seisin within thirty years.
Id. sec. 3.
48.-2. As to personal actions. All actions upon the case, other than
for slander, actions for accounts, for trespass, debt, detinue, and replevin
for goods and chattels, and actions of trespass quare clausum fregit, within
five years. Actions of trespass, assault, battery, wounding and
imprisonment, or any of them, within three years; and actions for words
within one year. Id. s. 4. There is a saving in favor of infants, femes
covert, persons non compos mentis, imprisoned, or beyond seas, or out of the
country, who may bring suit within the same time after the disability has
been removed. All actions on book accounts shall be brought within two
years.
49.-3. As to crimes. All offences not punishable with death, shall be
prosecuted within two years. Act of Feb. 10, 1882, s. 78. All actions, suits
and presentments upon penal acts of the general assembly, shall be
prosecuted within one year. Act of Nov. 19, 1828, s. 18.
50. Georgia. 1. As to lands. Seven years' adverse possession of lands is
a bar, with a saving in favor of infants, femes covert, persons non compos
mentis, imprisoned or beyond seas.
51.-2. As to personal actions. Twenty years is a bar in personal
actions, on bonds under seal; other obligations not under seal, six years;
trespass quare clausum fregit, three years trespass, assault and battery,
two years; slander and qui tam actions, six months. There are savings in
favor of infants, femes covert, persons non compos mentis, imprisoned and
beyond seas.
52. No other savings in favor of citizens of other states or foreigners.
53. As to crimes. In cases of murder there is no limitation. In all
other criminal cases where the punishment is death or perpetual
imprisonment, seven years; other felonies, four years; cases punishable by
fine and imprisonment, two years. Prince's Dig. 573-579. Acts of 1767, 1813,
and 1833. See 1 Laws of Geo. 33; 2 Id. 344; 3 Id. 30; Pamphlet Laws, 1833,
p. 143.
54. Illinois. 1. As to lands. No statute on this subject.
55.-2. As to personal actions. All actions of trespass quare clausum
fregit; all actions of trespass, detinue, actions sur trover, and replevin
for taking away goods and chattels, all actions of account, and upon the
case, other than such accounts as concern the trade of merchandise between
merchant and merchant, their factors and servants; all actions of debt,
grounded upon any lending or contract without specialty; all actions of debt
for arrearages of rent; all actions of assault, menace, battery, wounding,
and imprisonment, or any of them, which shall be sued or brought, shall be
commenced within the following times, and not after actions upon the case,
other than for slander; actions of account, and actions of trespass, debt,
detinue and replevin for goods and chattels, and actions of trespass quare
clausum fregit, within five years next after the cause of action or suit,
and not after; and the actions of trespass for assault, battery, wounding,
imprisonment, or any of them, within three years next after cause of action
or suit, and not after; and actions for slander, within one year next after
the words spoken. There are no savings, by the statute, in favor of citizens
of other states, or foreigners.
56. Indiana. 1. As to lands. "No action of ejectment shall be commenced
for the recovery of lands or tenements against any person or persons who may
have been in the quiet and peaceable possession of the same under an adverse
title for twenty years, either in his own right, or the right of any other
person or persons under whom he claims; and any action of ejectment
commenced against the provisions of this act shall be dismissed at the cost
of the party commencing the same. Provided, however, that this act shall not
be so construed as to affect any person who may be a feme covert, non compos
mentis, a minor, or any person beyond the seas, within five years after such
disability is removed." Rev. Code, c. 36, see. 3, January 13, 1831.
57.-2. As to personal actions. "All actions of debt on simple
contract, and for rent in arrear, action on the case, (other than slander,)
actions of account, trespass quare clausum fregit, detinue, and replevin for
goods and chattels, shall be commenced within five years after the cause of
action accrued, and not after. All actions of trespass, for assault and
battery, and for wounding and imprisonment, shall be commenced within three
years, and not after." Rev. Code, 6. 81, sec. 12, January 29, 1831.
58.-3. Crimes. "All criminal prosecutions for offences, the affixed
penalty of which is three dollars, or less, shall be commenced within thirty
days," &c. "All prosecutions for offences, except those the fixed penalties
of which do not exceed three dollars, and except treason, murder, arson,
burglary, man stealing, horse stealing, and forgery, shall be instituted
within two years, &c." Revised Code, c. 26, Feb. 10, 1831.
59.-4. Penal actions. "All actions upon any act of assembly, now or
hereafter to be made, when the right is limited to the party aggrieved,
shall be commenced within two years, &c., and all actions of slander shall
be commenced within one year, &c., saving the right of infants, femes
covert, persons non compos mentis, or without the jurisdiction of the United
States, until one year after their several disabilities are removed." Sec.
12.
60.-5. Savings. Provided, that no statute of limitation shall ever be
pleaded as a bar, or operate as such on an instrument or contract in
writing, whether the same be sealed or unsealed, nor to running accounts
between merchant and merchant. Rev. Code, eh. 81, s. 12.
61. And provided further, that on all contracts made in this state, if
the defendant shall be without the same when the cause of action accrued,
said action shall not be barred until the times above limited shall have
expired, after the defendant shall have come within the jurisdiction
thereof, and on all contracts made without the state, if the defendant shall
have left the state or territory when the same was made, and come within the
jurisdiction of this state before the cause of action accrued thereon, the
plaintiff shall not be barred his right of action, until the time above
limited after the said demand shall have been brought within the
jurisdiction of this state. Rev. Code, ch. 81, s. 12.
62. Kentucky. 1. As to lands. The act of limitation takes effect in a
writ of right or other possessory action, in thirty years from the seisin of
the demandant or his ancestors. In ejectment, in twenty years. See 1 Litt.
380, and Sessions Acts 1838-9, page 330. In the action of ejectment, there
is a saving in favor of infants; persons insane or imprisoned; femes covert,
to whom lands have descended during the coverture, when their cause of
action accrued. These persons may sue within three years after the removal
of the disability. 5 Litt. 90; Id. 97. There is no saving, in favor of non-
residents or absent persons. 5 Litt. 90; 4 Bibb, 561. But when the
possession has been held for seven years under a connected title in law or
equity deducible of record from the commonwealth, claiming title under an
adverse entry, survey or patent, no writ of ejectment or other possessory
action can be commenced. In this case there is a saying in favor of infants,
&c., as above, and of persons out of the United States, in the service of
the United States, or of this state, who may bring actions seven years after
the removal of the disability. 4 Litt. 55.
63.-2. As to personal actions. The act of limitation operates on
simple contracts (except store accounts) in five years. Torts to the person,
three years. Torts, except torts to the person, five years. Slander, one
year. Store accounts, one year from the delivery of each article; except in
cases of the death of the creditor or debtor before the expiration of one
year, when the further time of one year is allowed after such death.
64. Savings in such actions of simple contracts, tort, slander, and upon
store account, in favor of infants, femes covert, persons imprisoned or
insane at the time such action accrued, who have the full time aforesaid
after the removal of their respective disabilities to commence their suit.
But if the defendant, in any of said personal actions, absconds, or conceals
himself by removal out of the country or county where he resides when the
cause of action accrues, or by any other indirect ways or means defeats or
obstructs the bringing of such suit or action, such defendant shall not be
permitted to plead the act of limitations. 1 Litt. 380. There is no saving
in favor of non-residents or persons absent. Act of 1823, s. 3, Session
Acts, p. 287.
65. Louisiana. The Civil Code, book 3, title 23, chapter 1, section 3,
provides as follows:
66.-I. Of the prescription of one year. Art. 3499. The action of
justices of the peace and notaries, and persons performing their duties, as
well as constables, for the fees and emoluments which are due to them in
their official capacity that of muters and instructors in the arts and
sciences, for lessons which they give by the month; that of innkeepers and
such others, on account of lodging and board which they furnish; that of
retailers of provisions and liquors; that of workmen, laborers, and
servants, for the payment of their wages; that for the payment of the
freight of ships and other vessels, the wages of the officers, sailors, and
others of the crew; that for the supply of wood and other things necessary
for the construction, equipment, and provisioning of ships and other
vessels, are prescribed by one year.
67.-3500. In the cases mentioned in the preceding article, the
prescription takes place, although there may have been a regular continuance
of supplies, or of labor, or other service. It only ceases, from the time
when there has been an account acknowledged, a note or bond, or a suit
instituted. However, with respect to the wages of officers, sailors, and
others of the crew of a ship, this prescription runs only from the day when
the voyage is completed.
68.-3501. The actions for injurious words, whether verbal or written,
and that for damages caused by slaves or animals, or resulting from offences
or quasi offences; that which a possessor may institute, to have himself
maintained or restored to his possession, when he has been disturbed or
evicted; that for the delivery of merchandise or other effects, shipped on
board any kind of vessels; that for damage sustained by merchandise on board
ships, or which may have happened by ships running foul of each other, are
prescribed by one year.
69.- 3502. The prescription mentioned in the preceding article, runs,
with respect to the merchandise injured or not delivered from the day of the
arrival of the vessel, or that on which she ought to have arrived; and in
the other cases, from that on which the injurious words, disturbance, or
damage were sustained.
70.-II. Of the prescription of three years. Art. 3503. The action for
arrearages of rent charge, annuities and alimony, or of the hire of movables
or immovables; that for the payment of money lent; for the salaries of
overseers, clerks, secretaries, and of teachers of the sciences, for lessons
by the year or quarter; that of physicians, surgeons, and apothecaries, for
visits, operations, and medicines: that of parish judges sheriffs, clerks,
and attorneys, for their fees and emoluments, are prescribed by three years,
unless there be an account acknowledged, a note or bond given, or an action
commenced before that time.
71.-3504. The action of parties against their attorneys for the return
of papers delivered to them for the interest of their suits, is prescribed
also by three years, reckoning from the day when judgment was rendered in
the suit, or from the revocation of the powers of the attorneys.
72.-III. Of the prescription of five years. Art. 3505. Actions on
bills of exchange, notes payable to order or bearer, except bank notes,
those on all effects negotiable or transferable by endorsement or delivery,
are prescribed by five years, reckoning from the day when these engagements
were payable.
73.-3506. The prescription mentioned in the preceding article, and
those described above in the paragraphs, I. and II., run against minors and
interdicted persons, reserving, however, to them their recourse against
their tutors or curators. They run also against persons residing out of the
state.
74.-3507. The action of nullity or rescission of contracts,
testaments, or other acts; that for the reduction of excessive donations;
that for the rescission of partitions and guaranty of the portions, are
prescribed by five years when the person entitled to exercise them is in the
state, and ten years if he be out of it. This prescription only commences
against minors after their majority.
75.-IV. Of the prescription of ten years. Art. 3508. In general, all
personal actions, except those above enumerated, are prescribed by ten
years, if the creditor be present, and by twenty years, if he be absent.
76.-3509. The action against an undertaker or architect, for defect of
construction of buildings of brick or stone, is prescribed by ten years.
77.-3610. If a master suffer a slave to enjoy his liberty for ten
years, during his residence in the state, or for twenty years while out of
it, he shall lose all right of action to recover possession of the slave,
unless the slave be a runaway or fugitive.
78.-3511. The rights of usufruct, use and habitation, and services,
are lost, by non-use for ten years, if the person having a right to enjoy
them, be in the state, and by twenty years, if he be absent.
79.-V. Of the prescription of thirty years. Art. 3512. All actions for
immovable property, or for an entire estate as a succession, are prescribed
by thirty years, whether the parties be present, or absent from the state.
80.-3513. Actions for the revindication of slaves are prescribed by
fifteen years, in the same manner as in the preceding article.
81.-VI. Of the rules relative to the prescription operating a
discharge from debts. Art. 3514. In cases of prescription releasing debts,
one may prescribe against a title created by himself, that is, against an
obligation which be has contracted.
82.-3515. Good faith not being required on the part of the person
pleading this prescription, the creditor cannot compel him or his heirs to
swear whether the debt has or has not been paid, but can only blame himself
for not having taken his measures within the time directed by law; and it
may be that the debtor may not be able to take any positive oath on the
subject.
83.-3516. The prescription releasing debts is interrupted by all such
causes as interrupt the prescription by which property is acquired, and
which have been explained in the first section of this chapter. It is also
interrupted by the causes explained in the following articles.
84.-3517. A citation served upon one joint debtor or his
acknowledgment of the debt, interrupts the prescription with regard to all
the others and, even their heirs. A citation served on one of the heirs of a
joint debtor, or the acknowledgment of such heir, does not interrupt the
prescription with regard to the other heirs, even if the debt was by
mortgage, if the obligation be not indivisible. This citation or
acknowledgment does not interrupt the prescription, with regard to the other
co-debtors, except for that portion for which such heir is bound. To
interrupt this prescription for the whole, with regard to the other co-
debtors, it is necessary, either that the citations be served on all, or the
acknowledgment be made by all the heirs.
85.-3518. A citation served on the principal debtor, or his
acknowledgment, interrupts the prescription on the part of the surety.
86.-3519. Prescription does not run against minors and persons under
interdiction, except in the cases specified above.
87.-3520. Prescription runs against the wife, even although she be not
separated of property by marriage contract or by authority of law, for all
such credits as she brought in marriage to her husband, or for whatever has
been promised to her in dower; but the husband continues responsible to her.
88. Maine. 1. As to real actions. The writ of right is limited to thirty
years writ of ancestral seisin, twenty-five years writ of entry on party's
own seisin, twenty years. Stat. of Maine, eh. 62, Sec. 1, 2, 3. But by the
revised statutes, all real actions are limited to twenty years, from the
time the right accrues. They took effect on the first day of April, 1843.
Rev. Stat. T. 10, ch. 140, Sec. 1. And writs of right and of formedon are
abolished after that time. Rev. Stat. ch. 145, Sec. 1.
89.-2. As to personal actions. When founded on simple contract, they
are limited after six years; Rev. Stat. T. 10, ch. 146, Sec. 1; on
specialties, twenty years. Id. Sec. 11. Personal actions founded on torts
are limited to six years, except trespass for assault and battery, false
imprisonment, slanderous words and libels, which are limited to two years.
Id. Sec. 1.
90.-3. As to penal actions. When brought by individuals having an
interest in the penalty or forfeiture, they are limited to one year; Rev.
Stat. T. 10, c. 146, Sec. 15; when prosecuted by the state, two years. Id.
Sec. 16.
91.-4. As to crimes. Prosecutions for crimes must be commenced within
six years when the party charged has publicly resided within the state,
except in cases of treason, murder, arson, and manslaughter. Rev. Stat. T.
12, c. 167, 15.
92. Maryland. 1. As to lands. The statute of 21 Jac. I. c. 16, is in
force in this state.
93.-2. As to personal actions. By the Act of Assembly, 1715, c. 23,
actions of account; upon the case; or simple contract; or book debt or
account; and of debt not of specialty; detinue and replevin for taking away
goods and chattels; and trespass quare clausum fregit; must be brought
within three years ensuing the cause of action, and not after; other actions
of trespass, of assault, battery, wounding and imprisonment, within one year
from the time of the cause of action accruing; from these provisions are
excepted, however, such accounts as concern the trade of merchandise between
merchant and merchant, their factors and servants which are not resident
within this [province] state. This statute also enacts, that no bill, bond,
judgment, or recognizance, statute merchant or of the staple, or other
specialty whatsoever, (except such as shall be taken in the name or for the
use of our sovereign the king, &c.) shall be "good and pleadable, or
admitted in evidence" against any person of this [province] state, after the
principal debtor and creditor have both been dead twelve years, or the debt
or thing in action above twelve years standing.
94. Persons laboring under the impediments of infancy, coverture,
insanity or imprisonment, are not barred until five years after the
disability has been removed. And when a personal action abates by the death
of the defendant, the plaintiff may at any time renew his suit, provided it
be commenced without delay after letters testamentary have been granted.
95. Defendants, when absent from the state at the time the cause of
action accrued, cannot compute the time of their absence in order to bar the
plaintiff, but the latter may prosecute the same after the presence in the
state of the persons liable thereto, within the time or times limited by the
acts of limitation in such actions.
96. Massachusetts. By the Revised Statutes, ch. 120, it is provided as
follows, to wit:
97.-1. The following actions shall be commenced within six years next
after the cause of action shall accrue, and not afterwards
98. First, all actions of debt, founded upon any contract, or liability
not under seal, except such as are brought upon the judgment or decree of
some court of record of the United States, or of this, or some other of the
United States:
99. Secondly, all actions upon judgments rendered in any court, not
being a court of record:
100. Thirdly, all actions for arrears of rent:
101. Fourthly, all actions of assumpsit, or upon the case, founded on
any contract or liability, express or implied:
102. Fifthly, all actions for waste and for trespass upon land:
103. Sixthly, all actions of replevin and all other actions for taking,
detaining or injuring goods or chattels:
104. Seventhly, all other actions on the case, except actions for
slanderous words and for libels.
105.-2. All actions for assault and battery, and for false
imprisonment, and all actions for slanderous words and for libels, shall be
commenced within two years next after the cause of action shall accrue, and
not afterwards.
106.-3. All actions against sheriffs, for the misconduct or negligence
of their deputies, shall be commenced within four years next after the cause
of action shall accrue, and not afterwards.
107.-4. None of the foregoing provisions shall apply to any action
brought upon a promissory note, which is signed in the presence of an
attesting witness, provided the action be brought by the original payee, or
by his executor or administrator, nor to an action brought upon any bills,
notes, or other evidences of debt, issued by any bank.
108.-5. In all actions of debt or assumpsit brought to recover the
balance due upon a mutual and open account current, the cause of action
shall be deemed to have accrued, at the time of the last item proved in such
account.
109.-6. If any person entitled to bring any of the actions before
mentioned in this chapter shall, at the time when the cause of action
accrues, be within the age of twenty-one years, or a married woman, insane,
imprisoned, or absent from the United States, such person may bring the said
actions within the times in this chapter respectively limited, after the
disability shall be removed, or within six years after the disability
mentioned in the preceding section.
110.-7. All personal actions on any contract, not limited by the
foregoing sections, or by any other law of this commonwealth, shall be
brought within twenty years after the accruing of the cause of action.
111.-8. When any person shall be disabled to prosecute an action in the
courts of this commonwealth, by reason of his being an alien subject or
citizen of any country at war with the United States, the time of the
continuance of such war shall not be deemed any part of the respective
periods, herein limited for the commencement of any of the actions before
mentioned.
112.-9. If, at the time when any cause of action, mentioned in this
chapter, shall accrue against any person, he shall be out of the state, the
action may be commenced within the time herein limited therefor, after such
person shall come into the state and if after any cause of action shall have
accrued, the person against whom it has accrued shall be absent from and
reside out of the state, the time of his absence shall not be taken as any
part of the time limited for the commencement of the action.
113.-10. If any person, entitled to bring any of the actions, before
mentioned in this chapter, or liable to any such action, shall die before
the expiration of the time herein limited therefor, or within thirty days
after the expiration of the said time, and if the cause of action does by
law survive, the action may be commenced by or against the executor or
administrator of the deceased person, as the case may be, at anytime within
two years after the grant of letters testamentary or of administration, and
not afterwards, if barred by the provisions of this chapter.
114.-11. If, in any action duly commenced within the time in this
chapter limited and allowed therefor, the writ shall fail of a sufficient
service or return, by any unavoidable accident, or by any default or neglect
of the officer to whom it is committed, or if the writ shall be abated, or
the action otherwise avoided or defeated, by the death of any party thereto,
or for any matter of form, or if after a verdict for the plaintiff, the
judgment shall be arrested, or if a judgment for the plaintiff shall be
reversed on a writ of error, the plaintiff may commence a new action for
the same cause, at any time within one year after the abatement or other
determination of the original suit, or after the reversal of the judgment
therein; and if the cause of action does by law survive, his executor or
administrator may, in case of his death, commence such new action within the
said one year.
115.-12. If any person, who is liable to any of the actions mentioned
in this chapter, shall fraudulently conceal the cause of such action from
the knowledge of the person entitled thereto, the action may be commenced,
at any time within six years after the person who is entitled to bring the
same, shall discover that he has such cause of action, and not afterwards.
116. Michigan. 1. As to lands. Sec. 1. In all real actions the statute of
limitation takes effect as follows, to wit: In all actions for the recovery
of land the statute runs after twenty years from the time the cause of
action accrued, or within twenty-five years after the plaintiff or those
from, by or under whom he claims, shall have been seised or possessed of the
premises, except as specified below.
117.-Sec. 2. If the right or title accrued to an ancestor or
predecessor of the person who brings the action or makes the entry upon the
land, or to any other person from, by or under whom he claims, the said
twenty-five years shall be computed from the time when the right or title so
first accrued to such ancestor, predecessor or other person.
118.-Sec. 3. The right to bring an action for the recovery of land or
to make an entry thereon shall be deemed first to accrue when any person is
disseised, at the time of such disseisin.
119. When any person claims as heir or devisee of one who died seised,
his right shall be deemed to have accrued at the time of such death; unless
there is a tenancy by the curtesy or other estate, intervening after the
death of such ancestor or devisor, in which case the right shall be deemed
to accrue when such intermediate estate shall expire, or when it would have
expired by its own limitation.
120. When there is such an intermediate estate, and in all other cases
when the party claims by force of any remainder or reversion, his right, so
far as it is affected by the limitation herein prescribed, shall be deemed
to accrue when the intermediate or precedent estate would have expired by
its own limitation, notwithstanding any forfeiture thereof for which he
might have entered at an earlier time; but if the person claims by reason of
any forfeiture or breach of the condition, the statute runs from the time
when the forfeiture was incurred or the condition was broken.
121. In all other cases not otherwise provided for, the right shall be
deemed to accrue when the claimant or the person under whom he claims first
became entitled to the possession of the premises, under the title upon
which the entry or action is founded.
122.- Sec. 4. If any minister or other sole corporation shall be
disseised, any of his successors may enter upon the premises, or bring an
action for the recovery thereof at any time within five years after death,
resignation or removal of the person so disseised, notwithstanding the
twenty-five years after such disseisin shall have expired.
123.-Sec. 5. If the person first entitled to make such entry or bring
such action shall die within the age of twenty-one years, or be a married
woman, insane, imprisoned in the state prison, or absent from the United
States, and no determination or judgment shall have been had of or upon the
title, right or action which accrued to him, the entry may be made or the
action brought by his heirs, or any other person claiming from, by or under
him, at any time within ten years after his death, notwithstanding the said
twenty-five years shall have expired.
124.- Sec. 6. No person shall be deemed to have been in possession of any
lands within the meaning of the foregoing provisions merely by reason of
having made an entry thereon, unless he shall have continued open and
peaceable possession of the premises for the space of one year next after
such entry, or unless an action shall be commenced upon such entry and
seisin within one year after he shall be ousted or dispossessed of the
premises. R. S., p. 573 and 574.
125. No actions for the recovery of an estate sold by an executor or
administrator shall be maintained by the heir or other person claiming under
the deceased testator or intestate, unless it be commenced within five years
next after the sale. And no actions for any estate sold by a guardian shall
be maintained by the ward or any other person claiming under him, unless it
be commenced within five years after the termination of the guardianship.
Except that persons out of the state and minors and others under any legal
disability to sue at the time when the right of action shall first accrue,
may commence such action at any time within five years after the disability
is removed, or after their return to the state. R. S., p. 317, see. 35.
126.-2. As to personal actions. The following actions shall be
commenced within six years next after the cause of action shall accrue and
not afterwards, to wit:
127.-1st. All actions of debt founded upon any contract or liability
not under seal, except such as are brought upon the judgment or decree of
some court of record, or of general equity jurisdiction of the United
States, or of this or some other of the United States.
128.-2d. All actions upon judgments rendered in any court other than
those above excepted.
129.-3rd. All actions for arrears of rent.
130.-4th. All actions of assumpsit or upon the case founded on any
contract or liability express or implied.
131.-6th. All actions for waste.
132.-6th. All actions of replevin and trover and all other actions for
taking, detaining, or injuring goods and chattels.
133.-7th. All other actions on the case, except actions for slanderous
words or for libels.
134.-Sec. 2. All actions for trespass upon land or for assault and
battery, and for false imprisonment, and all actions for slanderous words
and for libels, shall be commenced within two years next after the cause of
action shall, accrue and ]lot afterwards.
135.-Sec. 3. All actions against sheriffs for the misconduct or neglect
of their deputies shall be commenced within four years next after the cause
of action shall accrue and not afterwards.
136.-Sec. 4. None of the foregoing provisions shall apply to any action
brought, upon any bills, notes or other evidence of debt issued by any bank.
137.-Sec. 5. In all actions of debt or assumpsit brought to recover the
balance due upon mutual and open account current the cause of action shall
be deemed to have accrued at the time of the last item proved in such
account.
138.-Sec. 6. If any person entitled to bring any of the actions before
mentioned in this chapter shall, at the time when the cause of action
accrues, be within the age of twenty-one years, or a married woman, insane,
imprisoned in the state prison, or absent from the United States, such
person may bring the said actions within the time in this chapter
respectively limited after the disability shall be removed.
139.-Sec. 7. All personal actions or any contract not limited by the
foregoing sections or by an other laws of this state shall be brought within
twenty years after the accruing of the cause of action.
140.-Sec. 8. When any person shall be disabled to prosecute an action
in the courts of this state by reason of his being an alien subject or
citizen of any country at war with the United States, the time of the
continuance of such war shall not be deemed any part of the respective
period herein limited for the commencement of an of the actions before
mentioned.
141.-Sec. 9. If at the time when a cause of action mentioned in this
chapter shall accrue against any person, he shall be out of the state, the
action may be commenced within the time herein limited therefor after such
person shall come into this state. And if, after any cause of action shall
have accrued, the person against whom it has accrued shall be absent from,
and reside out of the state, the time of his absence shall not be taken as
any part of the time limited for the commencement of the action.
142.-Sec. 10. If any person entitled to bring any of the actions before
mentioned shall die before the expiration of the time herein limited or
within thirty days after the expiration of the said time, and if the cause
of action does by law survive; the action may be commenced by or against the
executor or administrator of the deceased person as the case may be, at any
time within two years after the granting of the letters testamentary or of
administration, and not afterwards, if barred by the provisions of this
chapter.
143.-Sec. 11. If in any action, duly commenced within the time limited
in this chapter and allowed therefor, the writ shall fail of a sufficient
service or return, by an unavoidable accident or by any default or neglect
of the officer to whom it is committed, or if the suit shall be abated, or
the action otherwise avoided or defeated by the death of any party thereto,
or for any other matter of form, or if after a verdict for the plaintiff the
judgment shall be arrested, or if a judgment for the plaintiff shall be
reversed on a writ of error, the plaintiff may commence a new action for the
same cause at any time within one year after the abatement or other
determination of the original suit or after the reversal of the judgment
therein. And if the cause of action does by law survive, the executor or
administrator may in case of his death commence such action within said one
year.
144.-Sec. 12. In case of the fraudulent concealment of the right of
action, such action may be commenced at any time within six years after the
person entitled to the same shall discover that he has such cause of action.
R. S., p. 576, 577 and 578.
145.-Sec. 21. All actions and suits for any penalty or forfeiture on
any penal statute brought by any person to whom the penalty or forfeiture is
given in the whole or in part, shall be commenced within one year next after
the offence was committed, and not afterwards.
146.-Sec. 22. If the penalty or forfeiture is given in whole or in part
to the state, a suit therefor may be commenced by or in behalf of the state
at any time within two years after the offence was committed and not
afterwards. Rev. Stat., p. 579.
147.-3. As to crimes. The statute of limitations in criminal cases
takes effect after six years from the time the offence was committed; but
any period during which the party charged was not usually and publicly
resident within this state shall not be reckoned as a part of the six years.
In case of murder, however, there is no limitation. Rev. Stat., p. 666, sec.
15.
148. Mississippi. 1. As to lands. Real, possessory, ancestral and mixed
actions for lands, tenements, or hereditaments must be instituted within
twenty years next after the right or title thereto, or cause of action
accrued. How. & Hutch. page 568, ch. 43, sec. 88, L. 1822. Right or title
of entry is barred after twenty years. Id. sec. 89, L. 1822. Fifty years
actual possession uninterruptedly continued by occupancy, descent,
conveyance or otherwise, vests a complete title in the occupier. Id. sec.
90, L. 1822. Real estate, which may have escheated to the state, must be
claimed within two years next after the inquisition, or it will be sold.
How. & Hutch. page 263, ch. 34, sec. 84, L. 1822. If real estate escheat to
the state and be sold, the moneys arising from such sale may be claimed
within twelve years next from the day of such sale; Id. sec. 87, L. 1822;
and moneys arising from sale of personal estate, escheated, may be claimed
within six years next after the sale thereof. Ib. All persons claiming real
estate escheated, either by descent or otherwise, must appear and traverse
the office of inquest within twelve years from the date thereof, and in case
of personal estate, within six years, or they will be forever barred of
their claim. Id. sec. 88, L. 1822.
149.-2. As to personal actions. 1st. On contracts. These are, 1.
Actions on simple contracts must be commenced and sued within six years next
after the cause of action accrued. Except such actions as concern the trade
or merchandise between merchant and merchant, their factors, agents and
servants where there are mutual dealings and mutual credits. How. & Hutch.
page. 569, ch. 43, sec. 91, L. 1822 How. Rep. 2, 786.
150. Actions founded upon any account for goods, wares or merchandise,
sold and delivered, or for any articles charged in any store account, must
be commenced and sued within three years next after cause of action accrued.
Post-dating any article in such account is highly penal. How. & Hutch. page
570, ch. 43, sec. 98, L. 1822.
151.-2. Actions on specialties must be commenced and sued within
sixteen years next after cause of action accrued. How. & Hutch. page 569,
ch. 43, sec. 95, L. 1822.
152. Judgments recovered in any court of record as well without as within
this state, may be revived by scire facias, or an action of debt brought
thereon within twenty years next after the date of such judgment. How. &
Hutch. pages 570 and. 574, ch. 43, sec. 96 and 111, Laws 1822 and 1830. This
extends to decrees of the chancery court. How. Rep. 4, 31.
153.-3. Suits on bonds, or recognizances against sureties for public
officers must be commenced and sued within five years next after cause of
action accrued. Id. sec. 97, page 570, L. 1822.
154.-2d. On torts. Actions for torts affecting the person must be sued
within two years next after cause accrued. How. & Hutch. page 569, ch. 43,
sec. 92, L. 1822. Actions of slander for words spoken or written must be
sued within one year. Id. sec. 93, L. 1822; How. Rep. 2, 698. Actions of
trespass quare clausum fregit; trespass; detinue; trover; replevin, for
taking away goods and chattels, actions on the case, must be sued within six
years next after cause of action accrued. Id. How. & Hutch. page 569, ch.
43, sec. 91, L. 1822.
155.-3. As to penal actions. Penal actions are limited to twelve months
from the time of incurring the fine or forfeiture. (Persons absconding or
fleeing from justice are excepted:) How. & Hutch 49, see. 19, L. 1822.
156.-4. As to crimes. Indictments, presentments or informations for
offences (crimes) must be found or exhibited within one year next after the
offence committed, (except for willful murder, arson, forgery, counterfeiting
and larceny; as to which there is no limitation.) How. & Hutch. p. 668, ch.
49; sec. 19, L. 1822.
157. Missouri. 1. As to lands. That from henceforth no person or persons
whatsoever shall make entry into any lands, tenements or hereditaments,
after the expiration of twenty years next after his, her or their right or
title to the same first descended or accrued; nor shall any person or
persons whatsoever have or maintain any writ of right, or any other real or
possessory writ or action for any lands, tenements, or hereditaments of the
seisin or possession of him, her or them, his, her or their ancestors or
predecessors, nor declare or allege any other seisin or possession of him,
her or them, his, her or their ancestors or predecessors, than within twenty
years next before such writ, action, or suit, so hereafter to be sued,
commenced or brought. Act of 1848. Infants, femes covert, persons of unsound
memory, imprisoned, beyond seas, or without the jurisdiction of the United
States, may sustain such actions commenced within twenty years after the
disability has been removed.
158.-2. As to personal actions. In all actions upon the case (other
than for slander;) actions for accounts, (other than such accounts as
concern the trade of merchandise between merchant and merchant, their
factors and servants;) actions for debt, grounded upon any lending or
contract without specialty, or of debt for arrearages of rent; and actions
of trespass quare clausum fregit, shall be brought within five years after
the cause of action shall accrue.
159. All actions upon accounts for goods, wares and merchandise sold and
delivered, or for any article in any store account; all actions of trespass
vi et armis, assault and battery, and imprisonment, shall be brought within
two years after the cause of action shall accrue.
160. Actions on the case for words, one year after the words spoken; and
writs of error shall be brought within five years after the judgment or
order of complaint shall be rendered and not after. Act of July 4, 1807.
161. The plaintiff may within one year commence a new suit when a former
judgment has been reversed, or the plaintiff has suffered a nonsuit.
162.-3. As to criminal actions. Actions, suits, indictments, or
informations, (if the punishment be fine and imprisonment,) must be brought
within two years after the offence has been committed, and not after.
163. New Hampshire. 1. As to lands. No action can be maintained for the
recovery of lands, unless upon a seisin within twenty years, except by
persons under disability, that is, by those under twenty-one years of age,
femes covert, non compos mentis, imprisoned, or without the limits of the
United States, who may sue within five years after the disability has been
removed.
164.-2. As to personal actions. Actions in general are limited to be
brought within six years after they have accrued; but actions of trespass,
assault and battery, are limited to three years and actions of slander to
two. Infants, femes covert, persons imprisoned, or beyond sea, without the
limits of the United States, or non compos mentis, may bring an action
within the same time, after the disability has been removed. When the
defendant has left the state before the action accrued, and left no property
there which could have been attached, then the whole time is allowed after
his return.
165. New Jersey. 1. As to lands. By the act of June 5, 1787, it was
enacted,
166.-1. At the aforesaid date, that sixty years actual possession of
lands, tenements or other real estate uninterruptedly continued by
occupancy, descent, conveyance or otherwise, in whatever way or manner such
possession might have commenced or been continued, shall vest a full and
complete right and title in every actual possessor or occupier of such
lands, tenements or other real estate, and shall be a good and sufficient
bar to all claims that may be made or actions commenced, by any person or
persons whatsoever for the recovery of such lands, &c.
167.-2. And that thirty years' actual possession of lands, &c.
uninterruptedly continued as aforesaid, wherever such possession commenced
or is founded upon a proprietary right duly laid thereon, and recorded in
the surveyor general's office of the division in which such location was
made, or in the secretary's office, agreeably to law; or, wherever such
possession was obtained by a fair bona fide purchase of such land, &c. of
any person in possession, and supposed to have a legal right and title
thereto, or of the agent or agents of such person or persons, shall be a
good and sufficient bar to all prior locations, rights, titles, conveyances
or claims whatever, not followed by actual possession as aforesaid, and
shall vest an absolute right and title in the actual possessor or occupier
of all such lands, &c.
168. Provided, That if any person or persons having a right or title to
lands, &c. shall, at the time of the said right or title first descended or
accrued, be within twenty-one years of age, feme covert, non compos,
imprisoned, or without the United States, then such person or persons, and
his heir or heirs may, notwithstanding the aforesaid times are expired, be
entitled to his or their action for the same, so as such person or persons,
or his or their heirs, commence or sue forth his or their actions within
five years, after his or their full age, discoverture, coming of sound mind,
enlargement out of prison, or coming within any of the United States, and at
no other time.
169. And provided that any citizens of this, or any of the United States,
and his or their heirs, having such right, &c. may, notwithstanding the
aforesaid times expired, commence his or their action for such lands, &c.,
at any time within five years next after the passing of this act, and not
afterwards.
170. By the act of February 7, 1799, s. 9, it is enacted, that no person
who now hath, or hereafter may have, any right or title of entry, into
lands, tenements or hereditaments, shall make entry therein, but within
twenty years next after such right or title shall accrue, and such person
shall be barred from any entry afterwards.
171. Provided, That the time during which the person who hath or shall
have such right or title of entry shall have been under the age of twenty-
one years, feme covert, or insane, shall not be computed as part of the said
limited period of twenty years.
172. By section 10, of the same act, from and after the first day of
January, 1803, every real, possessory, ancestral, mixed or other action for
any lands, tenements or hereditaments, shall be brought or instituted within
twenty years next after the, right or title thereto or cause of such action
shall accrue, and not after.
173. Provided, That the time during which the person who hath or shall
have such right or title or cause of action, shall have been under the age
of twenty-one years, feme covert, or insane, shall not be computed as part
of the said twenty years.
174.-Section 11. That if a mortgagee and those under him be in
possession, of lands, &c. contained in the mortgage or any part thereof, for
twenty years after default of payment, then the right or equity of
redemption therein, shall be barred, forever.
175.-Section 13. That no person or persons, bodies politic or
corporate, shall be sued or impleaded by the state of New Jersey, for any
land, &c. or any rents, revenues, or profits thereof, but within twenty
years after the right, title or cause of action to the same shall accrue and
not after.
176.-2. As to personal actions. It is enacted that all actions of
trespass quare clausum fregit; trespass; detinue; trover; replevin; debt,
founded on any lending or contract without specialty, or for arrearages of
rent due on a parol demise; of account, (except such actions as concern the
trade of merchandise between merchant and merchant, their factors, agents
and servants;) and on the case, (except actions for slander,) shall be
commenced and sued within six years next after the cause of such actions
shall have accrued, and not after. That all actions of trespass for assault,
menace, battery, wounding and imprisonment, or any of them, shall be
commenced and sued within four years next after the cause of such actions
shall have accrued and not after. That every action upon the case for words,
shall be commenced and sued within two years next after the words spoken,
and not after. Persons within the age of twenty-one years, femes covert or
insane, may institute such actions within such time as is before limited
after his or her coming to or being of full age, discoverture, or sane
memory,
177. The act of February 7, 1799, s. 6, provides that every action of
debt, or covenant for rent, or arrearages of rent, founded upon lease under
seal; debt on any bill or obligation for the payment of money only, or upon
any award, under the hands and seals of arbitrators, for the payment of
money only, shall be commenced and sued within sixteen years next after the
cause of such action shall have accrued, and not after; but if any payment
shall have been made on any such lease, specialty or award, within or after
the said period of sixteen years, then an action, instituted on such lease,
specialty or award, within sixteen years after such payment, shall be
effectual in law, and not after. Provided, That the time during which the
person, who is or shall be entitled to any of the actions specified in this
section, shall have been within the age of twenty-one years, feme covert, or
insane, shall not be taken or computed as part of the said limited period of
sixteen years.
178. As to crimes. By the statute passed February 17,1829, Harr. Comp.
243, all indictments for offences punishable with death, (except murder,)
must be found within three years, and all offences not punishable with
death, must be brought within two years; except, as to both, where the
offender flies.
179.-4. As to penal actions. By the statute of February 7, 1799, Rev.
Laws, 410, all popular and qui tam actions, and also all actions on penal
statutes by the party grieved, must be brought within two years.
180. New York. The provisions limiting the time of commencing actions,
are contained in the Revised Statutes, part 3, chapter 4, tit. 2, and are
substantially as follows:
181.-1. As to lands. The people of this state will not sue or implead
any person for, or in respect to any lands, tenements, or hereditaments, or
for the issues or the profits thereof, by reason of any right or title of
the said people to the same, unless, 1. Such right shall have accrued within
twenty years before any suit, or other proceeding for the same shall have
been commenced; or unless, 2. The said people or those from whom they claim,
shall have received the rents and profits of such real estate, or some part
thereof, within the said space of twenty years. Grantees of the state cannot
recover, if the state could not; and when patents granted by the state are
declared void for fraud, a suit may be brought at any time within twenty
years thereafter.
182. No action for the recovery of any lands, tenements, or
hereditaments, or for the recovery of the possession thereof, shall be
maintained, unless it appear that the plaintiff, his ancestor, predecessor
or grantor, was seised or possessed of the premises in question within
twenty years before the commencement of such action.
183. No avowry or cognizance of title of real estate, or to any rents or
services, shall be valid, unless it appear that the person making the
avowry, or the person in whose right the cognizance is made, or the
ancestor, predecessor, or grantor of such person, was seised or possessed
of the premises in question, within twenty years before committing the act,
in defence of which the avowry or cognizance is made.
184. No entry upon real estate shall be deemed sufficient or valid as a
claim, unless an action be commenced thereupon within one year after the
making of such entry, and within twenty years from the time when, the right
of making such entry accrued.
185. All writs of scire facias upon fines, heretofore levied, of any
manors, lands, tenements, or hereditaments, shall be sued out within twenty
years next after the title or cause of action first descended or fallen, and
not after that period.
186. If any person entitled to commence any action as above specified, or
to make any entry, avowry, or cognizance, be at the time such title shall
first descend or accrue, either, 1. Within the age of twenty-one years or,
2. Insane; or, 3. Imprisoned on any criminal charge or in execution upon
some conviction of a criminal offence for any term less than for life; or,
4. A married woman; the time during which such disability shall continue
shall not be deemed any portion of the time above limited, for the
commencement of such suit, or the making such entry, avowry, or cognizance;
but such person may bring such action, or make such entry, avowry, or
cognizance, after the said time so limited, and within ten years after such
disability removed and not after. In case of the death of the person
entitled to such action, &c., before any determination or judgment in the
case, his heirs may institute the same within ten years after his death, but
not after. Rev. Statutes, part 3, c. 4, tit. 2, article 1.
187. The 68th section of the act "to simplify and abridge the practice,
pleadings and proceedings of the courts of this state," (New York,) passed
the 12th of April 1848, known as the Code of Procedure, enacts that the
provisions of the Revised Statutes, contained in the article entitled, "Of
the time of commencing actions relating property," shall, until otherwise
provided by statute, continue in force, and be applicable to actions for the
recovery of real property.
188.-2. Other actions than for the recovery of real property, and
actions already commenced, or cases where the right of action has accrued,
to which the statutes in force when the said act was passed shall be
applicable, according to the subject of the action, and without regard to
the form, must be commenced within the times as provided for in part 2, t.
2, c. 3 and 4, of the code of procedure in the following sections, namely:
Sec. 70. Within twenty years:
1. An action upon a judgment or decree of any court of the United
States, or of any state or territory within the United States. 2. An action
upon a sealed instrument.
Sec. 71. Within six years:
1. An action upon a contract, obligation or liability, express or
implied; excepting those mentioned in section seventy.
2. An action upon a liability created by statute, other than a penalty
or forfeiture.
3. An action for trespass upon real property.
4. An action for taking, detaining or injuring any goods or chattels,
including actions for the specific recovery of personal property.
5. An action for criminal conversation, or for any other injury to the
person or rights of another, not arising on contract, and not hereinafter
enumerated.
6. An action for relief, on the ground of fraud; the cause of action in
such case not to be deemed to have accrued, until the discovery by the
aggrieved party, of the facts constituting the fraud.
Sec. 72. Within three years:
1. An action against a sheriff or coroner, upon a liability incurred by
the doing of an act in his official capacity, and in virtue of his office,
or by the omission of an official duty; including the non-payment of money
collected upon an execution. But this section shall not apply to an action
for an escape.
2. An action upon a statue, for a penalty or forfeiture, where the
action is given to the party aggrieved, or to such party and the people of
this state, except where the statute imposing it prescribes a different
limitation.
Sec. 73. Within two years:
1. An action for libel, slander, assault, battery, or false
imprisonment.
2. An action upon a statute, for a forfeiture or penalty to the people
of this state.
Sec. 74. Within one year:
1. An action against a sheriff or other officer, for the escape of a
prisoner arrested, or imprisoned on civil process.
Sec. 75. In an action brought to recover a balance due upon a mutual,
open and current account, where there have been reciprocal demands between
the parties, the cause of action shall be deemed to have accrued from the
time of the last item in the account, on the adverse side.
Sec. 76. An action upon a statute for a penalty or forfeiture, given in
whole or in part to any person who will prosecute for the same, must be
commenced within one year after the commission of the offence, and if the
action be not commenced within the year, by a private party, it may be
commenced within two years thereafter, in behalf of the people of this
state, by the attorney-general, or the district attorney of the county where
the offence was committed.
Sec. 77. An action for relief, not hereinbefore provided for, must be
commenced within ten years after the cause of action shall have accrued.
Sec. 78. The limitations prescribed in this title shall apply to
actions brought in the name of the people of this state or for their
benefit, in the same manner as to actions by private parties.
Sec. 79. An action shall not be deemed commenced, within the meaning of
this title, unless it appear:
1. That the summons or other process therein was duly served upon the
defendants, or one of them; or
2. That the summons was delivered, with the intent that it should be
actually served, to the sheriff of the county in which the defendants, or
one of them, usually or last resided; or, if a corporation be defendant, to
the sheriff of the county in which such corporation was established by law,
or where its general business was transacted, or where it kept an office for
the transaction of business.
Sec. 80. If, when the cause of action shall accrue against a person,
he be out of the state, the action may be commenced within the term herein
limited, after his return to the state; and if, after the cause of action
shall have accrued, he depart from and reside out of the state, the time of
his absence shall not be part of the time limited for the commencement of
the action.
Sec. 81. If a person entitled to bring an action, except for a penalty
or forfeiture, or against a sheriff or other officer for an escape be at the
time the cause of action accrued, either:
1. Within the age of twenty-one years; or,
2. Insane; or,
3. Imprisoned on a criminal charge, or in execution under the sentence
of a criminal court, for a term less than his natural life; or,
4. A married woman: The time of such disability shall not be part of
the time limited for the commencement of the action.
Sec. 82. If a person entitled to bring an action, die before the
expiration of the time limited for the commencement thereof, and the cause
of action survive, his representatives may commence the action, after the
expiration of that time, and within one year from his death.
Sec. 83. When a person shall be an alien, subject or citizen of a
country at war with the United States, the time of the continuance of the
war shall not be part of the period limited for the commencement of the
action.
Sec. 84. If an action shall be commenced within the time prescribed
therefor, and a judgment therein for the plaintiff be reversed, on appeal,
the plaintiff, or if be die and the cause of action survive, his heirs or
representatives may commence a new action within one year after the
reversal.
Sec. 85. When the commencement of an action shall be stayed by
injunction, the time of the continuance of the injunction shall not be part
of the time limited for the commencement of the action.
Sec. 86. No person shall avail himself of a disability, unless it
existed when his right of action accrued.
Sec. 87. When two or more disabilities shall exist, the limitation
shall not attach until they all be removed.
Sec. 88. This title shall not affect actions to enforce the payment of
bills, notes, or other evidences of debt issued by moneyed corporations, or
issued or put in circulation as money.
Sec. 89. This title shall not affect actions against directors or
stockholders of a moneyed corporation, to recover a penalty or forfeiture
imposed, or to enforce a liability created by the second title of the
chapter of the Revised Statutes, entitled "Of Incorporations;" but such
actions must be brought within six years after the discovery, by the
aggrieved party, of the facts upon which the penalty or forfeiture attached,
or the liability was created.
Sec. 90. Where the time for commencing an action arising on contract
shall have expired, the cause of action shall not be deemed revived by an
acknowledgment or new promise, unless the same be in writing, subscribed by
the party to be charged thereby.
189. North Carolina. By the Revised Statutes, chapter 65, it is provided
as follows, to wit:
190. 1. As to lands. 1. That no person or persons nor their heirs, which
hereafter shall have any right or title to any lands, tenements, or
hereditaments, shall thereunto enter or make any claim, but within seven
years next after his, her, or their right or title descended or accrued, and
in default thereof, such person or persons, so not entering or making claim,
shall be utterly excluded and disabled from any entry or claim thereafter to
be made: Provided, nevertheless, that if any person or persons, that is or
hereafter shall be entitled to any right or claim of lands, tenements or
hereditaments, shall be, at the time the said right or title first
descended, accrued, come or fallen, within the age of twenty-one years, feme
covert, non compos mentis, imprisoned or beyond seas, that then such person
or persons shall and may, notwithstanding the said seven years be expired,
commence his, her or their suit, or make his, her, or their entry, as he,
she, or they might have done before this act, so as such person or persons
shall, within three years next after full age, discoverture, coming of sound
mind, enlargement out of prison, or persons beyond seas, within eight years
after the title or claim becomes due, take benefit and sue for the same, and
at no time after the times or limitations herein specified; but that all
possessions, held without suing such claim as aforesaid, shall be a
perpetual bar against all, and all manner of persons whatsoever, that the
expectation of heirs may not, in a short time, leave much land unpossessed,
and titles so perplexed, that no man will know of whom to take or buy land.
Provided also, that if in any action of ejectment for the recovery of any
lands, tenements or hereditaments, judgment be given for the plaintiff, and
the same be reversed for error, or a verdict pass for the plaintiff, and,
upon matter alleged in arrest of judgment, the judgment be given against the
plaintiff that he take nothing by his plaint, writ or bill, or a verdict be
given against the plaintiff, in all such cases the party plaintiff, his
heirs or executors, as the case shall require, may commence a new action or
suit from time to time, within one year after such judgment reversed, or
judgment given against the plaintiff.
191.- 2. Where any person or persons, or the person or persons under
whom he, she, or they claim, shall have been, or shall continue to be, in
possession of any lands, tenements or hereditaments whatsoever, under titles
derived from sales, made either by creditors, executors or administrators of
any person deceased, or by husbands and their wives, or by endorsement of
patents or other colorable title, for the space of twenty-one years, all
such possessions of lands, tenements or, hereditaments, under such title,
shall be and are hereby ratified, confirmed and declared to be a good and
legal bar, against the entry of any person or persons, under the right or
claim of the state, to all intents and purposes whatsoever; Provided,
nevertheless, that the possession so set up shall have been ascertained and
identified under known and visible lines or boundaries.
192.-2. As to personal actions. 3. All actions of trespass, detinue,
actions sur trover and replevin for taking away of goods and chattels, all
actions of account and upon the case, all actions of debt for arrearages of
rent, all actions of debt grounded upon any lending or contract without
specialty, and all actions of assault, menace, battery, wounding, and
imprisonment, or any of them, which shall be sued or brought, shall be
commenced or brought within the time and limitation in this act expressed,
and not after; that is to say, actions of account render, actions upon the
case, actions of debt for arrearages of rent, actions of debt upon simple
contract, actions of detinue, replevin, and trespass either for goods and
chattels or quare clausum fregit, within three years next after the cause of
such action or suit, and not after; except such accounts as concern the
trade of merchandise, between merchant and merchant, and their factors, or
servants; and the said actions of trespass, of assault and battery,
wounding, imprisonment, or any of them, within one year after the cause of
such action or suit, and not after; and the said actions upon the case for
words, within six months after the words spoken, and not after.
193.-4. Provided, nevertheless, that if, on any of the said actions or
suits, judgment be given for the plaintiff, and the same be reversed by
error, or a verdict pass for the plaintiff, and upon matter alleged in
arrest of judgment, the judgment be given against the plaintiff, that he
take nothing by his plaint, writ or bill; or if any of the said actions
shall be brought by original writ, and the defendant cannot be attached or
legally served with process, in all such cases, the party plaintiff, his
heirs, executors or administrators, as the case shall require, may commence
a new action or suit, from time to time, within a year after such judgment
reversed, or such judgment given against the plaintiff, or till the
defendant can be attached or served with the process, so as to compel him to
appear and answer. And provided further, that if any person or persons, that
is or shall be entitled to any such action or trespass, detinue, action sur
trover, replevin, actions of accompt and upon the case, actions of debt for
arrearages of rent, actions of debt grounded upon any lending or contract
without specialty, actions of assault, menace, battery, wounding, and
imprisonment, actions of trespass quare clausum fregit, actions upon the
case for slanderous words, be, or shall be, at the time of any such cause of
action given or accrued, fallen or come, within the age of twenty-one years,
feme covert, non compos mentis, imprisoned or beyond the seas, then such
person or persons shall be at liberty to bring the same actions, so as they
bring the same within such times as are before limited, after their coming
to or being of full age, discovert, of sound memory, at large or returned
from beyond seas, as other persons having no such impediment might have
done. And provided further, that when any person or persons, against whom
there is cause of action, shall be beyond sea at the time of such cause of
action given or accrued, fallen or come, the person, who shall have such
cause of action, may bring his action against them within such time or times
as are hereinbefore limited, for bringing such actions after their return.
194.-5. The limitation of actions shall apply to all bonds, bills, and
other securities made transferable by law, after the assignment or
endorsement thereof, in the same manner as it operates against promissory
notes.
195.-3. As to penal Actions. 6. All actions and suits to be brought on
any penal act of the general assembly, for the recovery of the penalty
therein set forth, shall be brought within three years after the cause of
such action or suit shall or may have accrued, and not after: Provided, that
this act shall not affect the time of bringing suit on any penal act of the
general assembly, which hath a time limited therein for bringing the same.
196. Ohio. 1. As to lands. Twenty-one years adverse possession of lands
operates a bar, with a saving in favor of infants, femes covert, persons
insane, imprisoned or beyond the sea, when the right of action accrues. And
if a person shall have left the state, and remain out of the same at the
time the cause of action accrued; or shall have left the state or county at
any time during the period of limitation, (that is, after the right of
action has accrued,) and remain out of the same in a place unknown to the
person having the right of action, suit may be brought at any time within
the period of limitation, after the return of such person to the state or
county.
197.-2. As to personal actions. 1st. Actions upon the case, covenant
and debt founded upon a specialty, or any agreement, contract or promise in
writing, may be brought within fifteen years after the cause of action shall
have accrued.
198.-2d. Actions upon the case and debt founded upon any simple
contract, not in writing, and actions on the case for consequential damages,
within six years.
199.-3d. Actions of trespass upon property, real or personal, detinue,
trover and replevin, within four years.
200.-4th. Actions of trespass for any injury done to the person,
actions of slander for words spoken, or for a libel, actions for malicious
prosecution, and for false imprisonment; actions against officers for
malfeasance or nonfeasance in office, and actions of debt qui tam, within
one year.
201.-5th. Actions for forcible entry and detainer, or forcible detainer
only, within two years.
202.-6th. All other actions within four years; and all penalties and
forfeitures given by statute and limited by the statute, within the times so
limited.
203.-7th. Infants, femes covert, persons insane or imprisoned, entitled
to an action of ejectment, may, after the twenty-one years have elapsed,
bring their actions within ten years after such disability removed. They may
bring all other actions, within the respective times limited for bringing
such actions, after the disability removed.
204.-8th. Actions, founded on contracts between persons resident at the
time of the contract without this state, which are barred by the laws of the
country where the contract was made, are barred in the courts of this state.
205.-9th. In all actions on contracts express or implied, in case of
payment of an part, principal or interest, acknowledgment of an existing
liability, debt or claim, or any promise to pay the same, within the time
herein limited, the action may be commenced within the time limited after
such payment, acknowledgment or promise.
206.-10th. If judgment be arrested or reversed, the suit abate or the
plaintiff become nonsuit, and the time limited shall have expired, the
plaintiff may bring a new action within one year after such arrest,
reversal, abatement or nonsuit.
207.-11th. A person who has left the state, or resides out of it, or
whose place of residence is unknown although in the state, at the time the
cause of action accrues, may be sued within the time limited by the act,
after his return or to removal the state, or his place of residence, if in
the state, becomes known. O. Stat. vol. 29, 214; Act of Feb. 18, 1831. Took
effect, June 1, 1831. Swan's Col. Laws, 553, 4, 5, 6.
208. This act only operates upon causes of action accruing after the act
took effect, and all causes of action previously subsisting are governed by
the statutes (and there have been several) in force when the respective
causes of action accrued, none of the statutes being retrospective in their
operation. 7 O. R. p. 2, 235, West's Adm'r. v. Hymer; Id. 153, Hazlett et
al. v. Crutchfield et al.; 6 Id. 96, Bigelow's Ex'r. v. Bigelow's Adm'r.
209.-3. As to penal actions. Prosecutions for any forfeitures under a
penal statute, must be instituted within two years, unless otherwise
specially provided for.
210. Pennsylvania. 1. As to lands. From henceforth no person or persons
whatsoever, shall make entry into any manors, lands, tenements or
hereditaments, after the expiration of twenty-one years next after his, her
or their right or title to the same first descended or accrued; nor shall
any person or persons whatsoever have or maintain any writ of right, or any
other real or possessory writ or action, for any manor, lands, tenements or
hereditaments, of the seisin or possession of him, her or themselves, his,
her, or their ancestors, or predecessors, nor declare or allege any other
seisin or possession of him, her or themselves, his, her or their ancestors
or predecessors, than within twenty-one years next before such writ, action,
or suit so hereafter to be sued, commenced or brought. Act of March 26,
1785, s. 2, 2 Smith's Laws Pa. 299.
211. Section 4, provides, that if any person or persons having such right
or title be, or shall be at the time such right or title first descended or
accrued, within the age of twenty-one years, feme covert, non compos mentis,
imprisoned or beyond the seas, or from and without the United States of
America, then such person or persons, and the heir or heirs of such person
or persons, shall and may, notwithstanding the said twenty-one years be
expired, bring his or their action, or make his or their entry, as he, she
or, they might have done, before the passing of this act, so as such person
or persons, or the heir or heirs of such person or persons, shall within ten
years next after attaining full age, discoverture, soundness of mind,
enlargement out of prison, or coming into the said United States, take
benefit of or sue for the same, and no time after the said ten years; and in
case such person or persons shall die within the said term of ten years,
under any of the disabilities aforesaid, the heir or heirs of such person or
persons shall have the same benefit, that such person or persons could or
might have had; by living until the disabilities should, have ceased or been
removed; and if any abatement happen in any proceeding or proceedings upon
such right or title, such proceeding or proceedings may be renewed and
continued, within three years from the time of such abatement, but not
afterward.
212. By the act of March 11, 1815, the provision above contained, so far
as the same relates to persons beyond the seas, and from and without the
United States of America, is repealed.
213.-2. As to personal actions. All actions of trespass quare clausum
fregit, all actions of detinue, trover and replevin, for taking away goods
and cattle, all actions upon account, and upon the case, (other than such
accounts as concern the trade of merchandise between merchant and merchant,
their factors or servants,) all actions of debt, grounded upon any lending
or contract without specialty, all actions of debt for arrearages of rent,
except the proprietaries' quit rents, and all actions of trespass, of
assault, menace, battery, wounding and imprisonment, or any of them, which
shall be sued or brought at any time after the five and twentieth day of
April, which shall be in the year of our Lord one thousand seven hundred and
thirteen, shall be commenced and sued within the time and limitation
hereafter expressed, and not after; that is to say, the said actions upon
the case, other than for slander, and the said actions for account, and the
said actions for trespass, debt, detinue, and replevin for goods or
chattels, and the said actions of trespass quare clausum fregit, within six
years next after the cause of such actions or suit, and not after. And the
said actions of trespass, of assault, menace, battery, wounding,
imprisonment, or any of them, within two years next after the cause of such
actions or suit, and not after. And the said actions upon the case for
words, within one year next after the words spoken, and not after. Act. of
March 27, 1713, s. 1.
214. If in any of the said actions or suits, judgment be given for the
plaintiff and the same be reversed by error, or a verdict passed for the
plaintiff, and upon matter alleged in arrest of judgment, the judgment be
given against the plaintiff, that he take nothing by his plaint, writ or
bill, then and in every such case, the party plaintiff, his heirs,
executors, or administrators, as the case may require, may commence a new
action or suit, from time to time, within a year after such judgment
reversed, or given against the plaintiff, as aforesaid, and not after. Id.
s. 2.
215. In all actions upon the cause, for slanderous words, to be sued or
prosecuted by any person or persons, in any court within this province,
after the said twenty-fifth day of April next, if the jury upon trial of the
issue in such action, or the jury that shall inquire of the damages, do find
or assess the damages under forty shillings, then the plaintiff or
plaintiffs in such action shall have and recover only so much costs as the
damages so given or assessed do amount unto without any further increase of
the same. Id. s. 4.
216. Provided nevertheless, that if any person or persons who is or shall
be entitled to any such action or trespass, detinue, trover, replevin,
actions of account, debt, actions for trespass, for assault, menace,
battery, wounding or imprisonment, actions upon the case for words, be, or,
at the time of any cause of such action given or accrued, fallen, or come,
shall be within the age of twenty-one years, feme covert, non compos mentis,
imprisoned or beyond the sea, that then such person or persons shall be at
liberty to bring the same actions, so as they take the same within such
times as are hereby before limited, after their coming to or being of full
age, discoverture, of sound memory, at large, or returning into this
province as other persons. id. s. 5.
217.-3. As to penal actions. All actions, suits, bills, indictments or
information, which shall be brought for any forfeiture upon any penal act of
assembly made or to be made, whereby the forfeiture is or shall be limited
to the commonwealth only, shall hereafter be brought within two years after
the offence was committed, and at no time afterwards, and all actions,
suits, bills, or informations which shall be brought for any forfeiture upon
any penal act of assembly made or to be made, the benefit and suit whereof
is or shall be by the said act limited to the commonwealth, and to any
person or persons that shall prosecute in that behalf, shall be brought by
any person or persons that may lawfully sue for the same, within one year
next after the offence was committed; and in default of such pursuit, then
the same shall be brought for the commonwealth, any time within one year
after that year ended; and if any action, suit, bill, indictment or
information shall be brought after the time so limited, the same shall be
void, and where a shorter time is limited by any act of assembly, the
prosecution shall be within that time. Act of March 26, 1785, s. 6.
218. Rhode Island. 1. As to lands. It is enacted that where any person or
persons, or others from whom he or they derive their titles, either by
themselves, tenants or lessees, shall have been for the space of twenty
years, in the uninterrupted, quiet, peaceable and actual seisin and
possession of any lands, tenements or hereditaments in the, state, during
the said time, claiming the same as his, her or their proper, sole and
rightful estate in fee simple, such actual seisin and possession shall be
allowed to give and make a good and rightful title to such person or
persons, their heirs and assigns, forever; saving and excepting however, the
rights and claims of persons under age, non compos mentis, feme covert, and
persons imprisoned, or beyond seas, they bringing their suits for the
recovery of such lands, &c., within the space of ten years next after the
removal of such impediment saving also, the rights and claims of any person
or persons, having any estate in reversion or remainder, expectant or
dependent on any lands, &c., after the determination of the estate for
years, life, &c.; such person or persons pursuing his or their title by due
course of law, within ten years after his or their right of action shall
accrue.
219.-2, As to personal actions. It provides that all actions upon the
case, (except actions for slander,) all actions of account, (except such as
concern trade and merchandise between merchant and merchant, their actors or
servants,) all actions of detinue, replevin and trover, all actions of debt
founded upon any contract without specialty, and all actions of debt for
arrearages of rents, must be commenced within six years next after the
accruing of the cause of said actions, and not after. That all actions of
trespass for breaking enclosures, and all other actions of trespass for any
assault, battery, wounding and imprisonment, must be commenced within four
years next after the accruing of such cause of action, and not after. And
that actions upon the case for words spoken, must be commenced within two
years next after the words spoken, and not after. If the person against whom
there is any such cause of action, at the time the same accrued, was without
the limits of the state, and did not leave property or estate therein, that
could, by common and ordinary process of law be attached, in that case, the
person who is entitled to such action, may commence the same, within the
respective periods limited in the preceding clause, after such person's
return into the state. If a person, entitled to any of the before described
actions, is at the time any such cause of action accrues, within the age of
twenty-one, feme covert, non compos mentis, imprisoned, or beyond sea, such
person may commence the same within the times respectively, limited as
above, after being of full age, discovert, of sane memory, at large, or
returned from beyond sea.
220.-South Carolina. 1. As to lands. By the act of 1712, s. 2, it is
enacted, that if any person or persons to whom any right or title to lands,
tenements or hereditaments within this province, shall hereafter descend or
come, do not prosecute the same within five years after such right or title
accrued, that then he or they, and all claiming under him or them, shall be
forever barred to recover the same.
221. By section 5, that not only the persons who have not made claim
within the time limited shall be barred, but also all persons that shall
come under such as have lost their claim.
222. And by section 2, that any person or persons beyond the seas, or out
of the limits of this province, feme covert, or imprisoned, shall be allowed
the space of seven years to prosecute their right or title, or claim to any
lands, tenements, or hereditaments in this province, after such right and
title accrued to them or any of them, and at no time after the said seven
years; and also, any person or persons that are under the age of twenty-one
years, shall be allowed to prosecute their claims at any time within two
years after they come of age, and if beyond the seas, three years." But a
subsequent act, in 1778; Pub. L. 455, s. 2; as to persons under twenty-one,
allows five years to prosecute their right to lands, after coming to twenty-
one.
223.-2. As to personal actions. By the act of 1712, s. 6, actions of
account, and upon the case, (other than case for slander, and upon such
accounts as concern the trade of merchandise between merchant and merchant,
their factors or servants;) of debt grounded upon any lending or contract
without specialty, or for arrearages of rent reserved by indenture; of
covenant; of trespass, and trespass quare clausum fregit; of detinue, and of
replevin for taking away of goods and chattels; must be commenced within
four years next after the cause of such action or suits, and not after.
Actions of trespass, of assault and battery, wounding, imprisonment, or any
of them, within one year next after the cause of action; and actions on the
case for words, within six months next after the words spoken, and not
after.
224. There are various minute provisions in the savings, in favor of
persons under age, insane, beyond seas, imprisoned, and of femes covert.
225. When the defendant is beyond seas at the time any personal action
accrues, the plaintiff may sue, after his return, within such times as is
limited for bringing such action. Act of 1712, s. 6.
226. Tennessee. 1. As to lands. The act of Nov. 16, 1819, c. 28, 2 Scott,
482, enacts in substance: Sec. 1. That any persons, their heirs or assigns,
who shall, at the passing of the act, or at any time after, have had seven
years possession of any lands, tenements, or hereditaments, which have been
granted by this state, or the state of North Carolina, holding or claiming
the same under a deed or deeds of conveyance, devise, grant, or other
assurance, purporting to convey an estate in fee simple, and no claim by
suit in law or equity effectually prosecuted shall have been set up, or made
to said land, &c., within the aforesaid time, in that case, the persons, or
their heirs or assigns, so holding possession, shall be entitled to keep and
hold in possession, such quantity of land as shall be specified and
described in his or their deed, of conveyance, devise, grant, or other
assurance, as aforesaid, in preference to and against all and all manner of
persons whatsoever; and any persons or their heirs, who shall neglect or
have neglected, for the said term of seven years, to avail themselves of any
title legal or equitable which they may have had to any lands, &c., by suit
in law or equity, effectually prosecuted against the persons in possession,
shall be for ever barred; and the persons so holding, their heirs. or
assigns, for the term aforesaid, shall have an indefeasible title in fee
simple to such lands. See 3 Am. Jur. 255.
227.-2. That no persons, or their heirs, shall maintain any action in
law or equity for any lands, &c., but within seven years next after his,
her, or their right to commence, have, or maintain such suit, shall have
come, fallen, or accrued; and that all suits in law or equity shall be
commenced and sued within seven years next after the title or cause of
action accrued or fallen, and at no time after the said seven years shall
have passed.
228. Persons who, when title first accrued, were within twenty-one years
of age, femes covert, non compos mentis, imprisoned, or beyond the limits of
the United States, or the territories thereof, may bring their action at any
time, so as such suit is commenced within three years next after his, her,
or their respective disabilities or death, and not after; and it is further
provided, that in the construction of the savings, no cumulative disability
shall prevent the bar.
229.-3. That if, in any of the said actions or suits, judgment is given
for the plaintiff and is reversed for error, or verdict pass for the
plaintiff, and upon matter alleged in arrest of judgment, the judgment be
given against the plaintiff, that he take nothing, &c.; or, if the action be
commenced by original writ, and the defendant cannot be legally attached, or
served with process, in such case the plaintiff, his heirs, executors, or
administrators, as the case is, may commence a new action, from time to
time, within a year after such judgment reversed or given against the
plaintiff, or until the defendant can be attached, or served with process,
so as to compel him, her, or them to appear and answer.
230.-4. Provided, that this act shall have no bearing on the lands
reserved for the use of schools.
231.-2. As to personal actions. Actions of account render; upon the
case; debt for arrearages of rent; detinue; replevin; and trespass quare
clausum fregit; must be brought within three years next after the cause of
such action, and not after: except such accounts as concern the trade of
merchandise, between merchant and merchant, and their factors or servants.
Actions of trespass, assault and battery, wounding, and imprisonment, or any
of them, within one year after the cause of such action, and not after: and
actions of the case for words, within six months after the words spoken, and
not after. Act of 1715, c. 27, s. 5. Persons who, at the time the cause of
action accrued, are within the age of twenty-one years, femes covert, non
compos mentis, imprisoned, or beyond seas, may bring their actions within
the time above limited, after the removal of the disability.. Id. s. 9.
232. The act of 1756, c. 4, 1 Scott, 89, contains the following
enactment: 1. Where the plaintiff founds his demand upon a book account for
goods, wares, and merchandise, sold and delivered, or work done, and solely
relies for proof of delivery of the articles upon his oath, such oath shall
not be admitted to prove the delivery of any articles in the book, of longer
standing than two years.
233.-2. And no such book of accounts, although proved by witnesses,
shall be received in evidence for goods, &c., sold, or work done, above five
years before action brought, except of persons being out of the government,
or where the account shall be settled and signed by the parties.
234.-3. Creditors of any deceased person, residing in the state, shall,
within two years, and out of the state, within three years, from the
qualification of the executors or administrators, make demand of their
respective accounts, debts, and demands, of every kind whatsoever, to such
executors, and administrators, and on failure to make the demand, and bring
suit within those times, shall be for ever barred; saving to infants, non
compotes, and femes covert, one year to sue, after the disability removed.
But if any creditor, after making demand of his debt, &c., of the executor
or administrator, shall delay his suit at their special request, then the
demand shall not be barred during the time of indulgence.
235. Vermont. 1. Criminal cases. Sect. 1. All actions, suits, bills,
complaints, informations, or indictments, for any crime or misdemeanor,
other than theft, robbery, burglary, forgery, arson, and murder, shall be
brought, had, commenced, or prosecuted within three years next after the
offence was committed, and not after.
236.-Sect. 2. All complaints and prosecutions for theft, robbery,
burglary and forgery, shall be commenced and prosecuted within six years
next after the commission of the offence, and not after.
237.-Sect. 3. If any action, suit, bill, complaint, information, or
indictment, for any crime or misdemeanor, other than arson and murder, shall
be brought, had, commenced, or prosecuted, after the time limited by the two
preceding sections, such proceedings shall be void, and of no effect.
238.-Sect. 4. All actions and suits, upon any statute, for any penalty
or forfeiture, given in whole or in part to any person who will prosecute
for the same, shall be commenced within one year after the offence was
committed, and not after.
239.-Sect. 5. If the penalty is given in whole or in part to the state,
or to any county or town, or to the treasury thereof, a suit therefor may be
commenced by or in behalf of the state, county, town or treasury, at any
time within two years after the offence was committed, and not afterwards,
240.-Sect. 6. All actions upon any statute, for any penalty or
forfeiture, given in whole or in part to the party aggrieved, shall be
commenced within four years after the offence was committed, and not after.
241.-Sect. 7. The six preceding sections shall not apply to any bill,
complaint, information, indictment or action, which is or shall be limited
by any statute, to be brought, had, commenced or prosecuted within a shorter
or longer time than is prescribed in these six sections; but such bill,
complaint, information, indictment or other suit, shall be brought and
prosecuted within the time that may be limited by such statute.
242.-Sect. 8. When any bill, complaint, information or indictment shall
be exhibited in any of the cases mentioned in this chapter, the clerk of the
court, or magistrate, to whom it shall be exhibited, shall, at the time of
exhibiting, make a minute thereon, in writing, under his official signature,
of the true day, month and year, when the same was exhibited.
243.-Sect. 9. When any action shall be commenced, in any of the cases
mentioned in this chapter, the clerk or magistrate, signing the writ, shall
enter upon it a true minute of the day, month and year, when the same was
signed.
244.-Sect. 10. Every bill, complaint, information, indictment or writ,
on which a minute of the day, month and year, shall not be made, as provided
by the two preceding sections, shall, on motion, be dismissed.
245.-Sect. 11. None of the provisions of this chapter shall apply to
suits against moneyed corporations, or against the directors or stockholders
thereon to recover any penalty or forfeiture imposed, or to enforce any
liability created by the act of incorporation or any other law; but all such
suits shall be brought within six years after the discovery, by the
aggrieved party, of the facts upon which such penalty or forfeiture
attached, or by which such liability was created.
246.-2. Real and personal actions and rights of entry. Sec. 1. No
action for the recovery of any lands, or for the recovery of the possession
thereof, shall be maintained, unless such action is commenced within fifteen
years next after the cause of action first accrued to the plaintiff, or
those under whom he claims.
247.-Sect. 2. No person having right or title of entry into houses or
lands, shall thereinto enter, but within fifteen years next after such right
of entry shall accrue.
248.-Sect. 3. The right of any person to the possession of any real
estate shall not be impaired or affected, by a descent being hereafter cast
in consequence of the death of any person in possession of such estate.
249.-Sect. 4. The first two sections of this chapter, so far as they
relate to or affect lands granted, given, sequestered or appropriated to any
public, pious or charitable use, shall take effect from and after the first
day of January, in the year of our Lord eighteen hundred and forty-two, and,
until that day, the laws now in force relating to such lands, shall continue
in operation.
250.-Sect. 5. The following actions shall be commenced within six years
next after the cause of action accrued, and not after:
First. All actions of debt founded upon any contract, obligation or
liability, not under seal, excepting such as are brought upon the judgment
or decree of some court of record of the United States, or of this or some
other state:
Second. All actions upon judgments rendered in any court not being a
court of record:
Third. All actions of debt for arrearages of rent:
Fourth. All actions of account, assumpsit or on the case, founded on
any contract or liability, express or implied:
Fifth. All actions of trespass upon land:
Sixth. All actions of replevin, and all other actions for taking,
detaining or injuring goods or chattels:
Seventh. All other actions on the case, except actions for slanderous
words, and for libels.
251. Sect. 6. All actions for assault and battery, and for false
imprisonment, shall be commenced within three years next after the cause of
action shall accrue, and not afterwards.
252.-Sect. 7. All actions for slanderous words, and for libels, shall
be commenced within two years next after the cause of action shall accrue,
and not after.
253.-Sect. 8. All actions against sheriffs, for the misconduct or
negligence of their deputies, shall be commenced within four years next
after the cause of action shall accrue, and not afterwards.
254.-Sect. 9. None of the foregoing provisions shall apply to any
action brought upon a promissory note, which is signed in the presence of an
attesting witness but the action, in such case, shall be commenced within
fourteen years next after the cause of action shall accrue thereon, and not
afterwards.
255.-Sect. 10. All actions of debt or scire facias on judgment shall be
brought within eight years, next after the rendition of such judgment, and
all actions of debt on specialties within eight years after the cause of
action accrued, and not afterwards.
256.-Sect. 11. All actions of covenant, other than the covenants of
warranty, and seisin, contained in deeds of conveyance of lands, shall be
brought within eight years next after the cause of action shall accrue, and
not after.
257.-Sect. 12. All actions of covenant, brought on any covenant of
warranty contained in any deed of conveyance of land, shall be brought
within eight years next after there shall have been a final decision against
the title of the covenantor in such deed; and all actions of covenant
brought on any covenant of seisin, contained in any such deed, shall be
brought within fifteen years next after the cause of action shall accrue,
and not after.
258.-Sect. 13. When any person shall be disabled to prosecute an action
in the courts of this state, by reason of his being an alien, subject or
citizen of any country at war with the United States, the time of the
continuance of such war shall not be deemed any part of the respective
periods herein limited for the commencement of any of the actions before
mentioned.
259.-Sect. 14. If, at the time when any cause of action of a personal
nature, mentioned in this chapter, shall accrue against any person, he shall
be out of the state, the action may be commenced, within the time herein
limited therefor, after such person shall come into the state; and if, after
any cause of action shall have accrued, and before the statute has run, the
person against whom it has accrued, shall be absent from and reside out of
the state, and shall not have, known property within this state, which
could, by the common and ordinary process of law, be attached, the time of
his absence shall not be taken as any part of the time limited for the
commencement of the action.
260.-Sect. 15. If any person, entitled to bring any of the actions,
before mentioned in this chapter, or liable to any such action, shall die
before the expiration of the time herein limited therefor, or within thirty
days after the expiration of the said time, and if the cause of action does
by law survive, the action may be commenced, by the executor or
administrator, within two years after such death, or against the
administrator or executor of the deceased person, or the same may be
presented to the commissioners on said estate, as the case may be, at any
time within two years after the grant of letters testamentary or of
administration, and not afterwards, if barred by the provisions of this
chapter; provided, however, if the commissioners on such estate are required
to make their report to the probate court before, the, expiration of said
two years, the claim against the deceased shall be presented to the
commissioners within the time allowed other creditors to present their
claims.
261.-Sect. 16. If, in any action, duly commenced within the time in
this chapter limited and allowed therefor, the writ shall fail of a
sufficient service, or return, by any unavoidable accident, or by any
default or neglect of the officer to whom it is committed, or if the writ
shall be abated, or the action otherwise defeated or avoided, by the death
of any party thereto, or for any matter of form, or if after a verdict for
the plaintiff, the judgment shall be arrested, or if a judgment for the
plaintiff shall be reversed on a writ of, error, or on exceptions, the
plaintiff may commence a new action for the same cause, at any time within
one year after the abatement or other determination of the original suit, or
after the reversal of the judgment therein; and if the cause of action does
by law survive, his executor or administrator may, in case of his death,
commence such new action within the said one year; or, if no executor or
administrator be appointed within that time, then within one year after
letters testamentary or of administration shall have been granted to him.
262.-Sec. 17. Whenever the commencement of any suit shall be stayed by
an injunction of any court of equity, the time, during which such injunction
shall be in force, shall not be deemed any portion of the time in this
chapter limited, for the commencement of suit.
263.-Sect. 18. If any person entitled to bring any action in this
chapter specified, shall, at the time when the cause of action accrues, be a
minor or a married woman, insane or imprisoned, such person. may bring the
said action, within the times in this chapter respectively limited, after
the disability shall be removed.
264.-Sect. 19. None of the provisions of this chapter shall apply to
suits brought to enforce payment on bills, notes or other evidences of debt,
issued by moneyed corporations.
265.-Sect. 20. All, the provisions of this chapter shall apply to the
case of a debt or contract, alleged by way of set-off; and the time of
limitation of such debt shall be computed in like manner as if an action had
been commenced therefor, at the time when the plaintiff's action was
commenced.
266.-Sect. 21. The limitations herein before prescribed for the
commencement of actions, shall apply to the same actions, when brought in
the name of the state, or in the name of any officer, or otherwise, for the
benefit of the state, in the same manner as to actions brought by citizens.
267.-Sect. 22. In actions of debt or upon the case founded on any
contract, no acknowledgment or promise shall be evidence of a new or
continuing contract, whereby to take any case out of the provisions of this
chapter, or to deprive any party of the benefit thereof, unless such
acknowledgment or promise be made or contained by or in some writing, signed
by the party chargeable thereby.
268.-Sect. 23. If there are two or more joint contractors, or joint
executors or administrators of any contractor, no such joint contractor,
executor or administrator shall lose the benefit of the provisions of this
chapter, so as to be chargeable by reason only of any acknowledgment or
promise, made or signed by any other or others of them.
269.-Sect. 24. In actions commenced against two or more joint
contractors, or joint executors or administrators of any contractor, if it
shall appear on the trial, or otherwise, that the plaintiff is barred by the
provisions of this chapter, as to one or more of the defendants, but is
entitled to recover against any other or others of them, by virtue of a new
acknowledgment or promise, or otherwise, judgment shall be given for the
plaintiff as to any of the defendants against whom he is entitled to
recover, and for the other defendant. or defendants against the plaintiff.
270.-Sect. 25. If, in any action on contract, the defendant shall
plead in abatement, that any other person ought to have been, jointly sued,
and issue be joined on that plea, and it shall appear on the trial, that the
action was, by reason of the provisions of this chapter, barred against the
person so named in the plea, the said issue shall be found for, the
plaintiff.
271.-Sect. 26. Nothing, contained in the four preceding sections, shall
alter, take away or lessen the effect of a payment of any principal or
interest, made by any person.
272.-Sect. 27. If there are two or more joint contractors or joint
executors or administrators of any contractor, no one of them shall lose the
benefits of the provisions of this chapter, so as to be chargeable by reason
only of any payment, made by any other or others of them.
273.-Sect. 28. None of the provisions of this chapter, respecting the
acknowledgment of a debt, or a new promise to pay it, shall apply to any
such acknowledgment or promise, made before the first day of January, in the
year of our Lord eighteen hundred and forty-two, but every such last
mentioned acknowledgment or promise, although not made in writing, shall
have the same effect as if no provisions, relating thereto, had been herein
contained.
274.-Sect. 29. The provisions of this chapter which alter or vary the
law now in force relative to the limitation of actions shall not apply to
any case where the cause of action accrues before this chapter shall take
effect, and go into operation; and in all cases, where the cause of action
accrues before this chapter takes effect, the laws now in force limiting the
time for the commencement of suits thereon, shall continue in operation.
275. Virginia. 1. As to lands. All writs of formedon in descender,
remainder, or reverter, of any lands, tenements or hereditaments, shall be
sued out within twenty years next after the title or cause of action
accrued, and not afterwards: and no person having any right or title of
entry into any lands, &c. shall make any entry but within twenty years next
after such right or title accrued. Persons entitled to such writ or right or
title of entry, who are under twenty-one years of age, femes covert, non
compos mentis, imprisoned, or not within the commonwealth, at the time such
right or title accrues, may themselves or their heirs, notwithstanding the
said twenty years have expired, bring and maintain his action, or make his
entry, within ten years next after such disabilities removed, or the death
of the person so disabled.
276. In all writs of right, and other actions possessory, any person may
maintain a writ of right upon the possession or seisin of his ancestor or
predecessor within fifty years, or any other possessory action upon the
possession or seisin of his ancestor or predecessor, within forty years; but
no person shall maintain a real action upon his own possession or seisin,
but within thirty years next before the teste of the writ.
277.-2. As to personal actions. The provisions in relation to personal
actions are as follows: 1. Upon all actions upon the case, (other than for
slander,) actions of account or assumpsit, (other than such accounts as
concern the trade of merchandise between merchant and merchant, their
factors or servants,) debt grounded upon any lending or contract without
specialty, debt for arrears of rent, trespass, detinue, trover, or replevin
for goods and chattels, and trespass quare clausum fregit, five years: 2.
Upon actions of assault, battery, wounding, or imprisonment, three years: 3.
Upon actions of slander, one year. Infants, femes covert, persons non compos
mentis, imprisoned, beyond seas, or out of the country, are allowed full
time to bring all such actions, except that of slander, after the disability
has been removed.
278. All actions or suits, founded upon any account for goods, sold and
delivered, or for articles charged in any store account, must be commenced
within one year next after the cause of action, or the delivery of the
goods, and not after; except that, in the case of the death of the creditors
or debtors, before the expiration of the said term of one year, the farther
time of one year, from the death of such creditor or debtor, shall be
allowed. In suits in the name of any person residing beyond the seas, or out
of this country, for recovery of any debt due for goods actually sold and
delivered here by his factor or factors, the saving in favor of persons
beyond the seas at the time their causes of action accrued, is not to be
allowed; but, if any factor shall happen to die before the expiration of the
time in which suit should have been brought, his principal shall be allowed
two years from his death, to bring suit for any debt due on account of any
contract or dealing with such factor. 1 Rev. Code, 489-491.
LINE, descents. The series of persons who have descended from a common
ancestor, placed one under the other, in the order of their birth. It
connects successively all the relations by blood to each other. Vide
Consanguinity; Degree.
³ A ³
³ s ³ ÚÄ 6. Tritavus, Tritavia.
³ c ³ ÃÄ 5. Atavus, Atavia.
³ e ³ ÃÄ 4. Abavus, Abavia.
³ n ³ Great grand- ³ ³
³ d Ä´ father, great ÃÄ ÃÄ 3. Proavus, Proavia.
³ i ³ grandmother, ³ ³
³ n ³ ³
³ g ³ Grand father, ³ ³
³ ³ grandmother ÃÄ ÃÄ 2. Avus, Avia.
³ l ³ ³
³ i ³ Father, mother ÃÄ 1. Pater, Mater.
³ n ³ ³
³ e ³ ³
EGO. ÃÄ EGO.
³ D ³ ³
³ e ³ ³
³ s ³ Son. ÃÄ 1. Filius.
³ c ³ Grandson ÃÄ 2. Nepos, Nepti.
³ e ³ Great Grandson. ÃÄ 3. Pronepos, Proneptis.
³ n ³ ÃÄ 4. Abnepos, Abneptis.
³ d ³ ÃÄ 5. Adnepos, Adneptis.
³ i ³ ÃÄ 6. Trinepos, Trineptis.
³ n ³
³ g ³
³ ³
³ L ³
³ i ³
³ n ³
³ e ³
2. The line is either direct or collateral. The direct line is composed
of all the persons who are descended from each other. If, in the direct
line, any one person is assumed the propositus, in order to count from him
upwards and downwards, the line will be divided into two parts, the
ascending and descending lines. The ascending line is that, which counting
from the propositus, ascends to his ancestors, to his father, grandfather,
great-grandfather, &c. The descending line, is that which, counting from the
same person, descends to his children, grandchildren, great-grand-children,
&c. The preceding table is an example.
3. The collateral line considered by itself, and in relation to the
common ancestor, is a direct line; it becomes collateral when placed along
side of another line below the common ancestor, in whom both lines unite for
example:
Common ancestor.
O
ÚÄÄÄÄÄÄÄÄÄÄÄÄÄÄÁÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ¿
³ ³
o o
³ ³
o o
Direct ³ ³ Collateral
line. o o line.
³ ³
o o
³ ³
o o
³ ³
O o
Ego.
4. These two lines are independent of each other; they have no
connexion, except by their union in the person of the common ancestor. This
reunion is what forms the relation among the persons composing the two
lines.
5. A line is also paternal or maternal. In the examination of a
person's ascending line, the line ascends first to his father, next to his
paternal grandfather, his paternal great-grandfather, &c. so on from father
to father; this is called the paternal line. Another line will be found to
ascend from the same person to his mother, his maternal grandmother, and so
from mother to mother; this is the maternal line. These lines, however, do
not take in all the ascendants, there are many others who must be imagined.
The number of ascendants is double at each degree, as is shown by the
following table:
ÚÄÄÄÄÄ o
³
ÚÄÄÄÄÄoÄÄÄÄ´
³ ³
³ ÀÄÄÄÄÄ o
³
ÚÄÄÄÄÄÄ´
³ ³
F ³ ³ ÚÄÄÄÄÄ o
a ³ ³ ³
t ³ ÀÄÄÄÄÄoÄÄÄÄ´
h ³ ³
e ³ ÀÄÄÄÄÄ o
r ³
ÚÄÄOÄÄ´
³ ³
P ³ O ³ ÚÄÄÄÄÄ o
a ³ t ³ ³
t ³ h ³ ÚÄÄÄÄÄoÄÄÄÄ´
e ³ e ³ ³ ³
r ³ r ³ ³ ÀÄÄÄÄÄ o
n ³ ³ ³
a ³ L ÀÄÄÄÄÄÄ´
l ³ i ³
³ n ³ ÚÄÄÄÄÄ o
L ³ e ³ ³
i ³ ÀÄÄÄÄÄoÄÄÄÄ´
n ³ ³
e ³ ÀÄÄÄÄÄ o
³
Ego. OÄÄÄÄÄ´
³
M ³ ÚÄÄÄÄÄ o
a ³ ³
t ³ ÚÄÄÄÄÄoÄÄÄÄ´
e ³ ³ ³
r ³ O ³ ÀÄÄÄÄÄ o
n ³ t ³
a ³ h ÚÄÄÄÄÄ´
l ³ e ³ ³
³ r ³ ³ ÚÄÄÄÄÄ o
l ³ ³ ³ ³
i ³ l ³ ÀÄÄÄÄÄoÄÄÄÄ´
n ³ i ³ ³
e ³ n ³ ÀÄÄÄÄÄ o
³ e ³
ÀÄÄÄoÄÄ´
³
M ³ ÚÄÄÄÄÄ o
o ³ ³
t ³ ÚÄÄÄÄÄoÄÄÄÄ´
h ³ ³ ³
e ³ ³ ÀÄÄÄÄÄ o
r ³ ³
ÀÄÄÄÄÄ´
³
³ ÚÄÄÄÄÄ o
³ ³
ÀÄÄÄÄÄoÄÄÄÄ´
³
ÀÄÄÄÄÄ o
Vide 2 Bl. Com. 200, b. 2, c. 14; Poth. Des Successions, ch. 1, art. 3,
Sec. 2; and article Ascendants.
LINE, measures. A line is a lineal measure containing the one twelfth part
of a on inch.
LINE, estates. The division between two estates. Limit; border; boundary.
2. When a line is mentioned in a deed as ending at a particular
monument, (q.v.) it is to be extended in the direction called for, without
regard to distance, until it reach the boundary. 1 Taylor, 110, 303 2 Hawks,
219; 3 Hawks, 21; 2 Taylor, 1. And a marked line is to be adhered to
although it depart from the course. 7 Wheat. 7; 2 Overt. 304; 3 Call, 239; 7
Monr. 333; 2 Bibb, 261; 4 Bibb, 503; 4 Monr. 29; see further, 2 Dana, 2; 6
Wend. 467; 1 Bibb, 466; 1 Marsh. 382; 3 Marsh. 382; 3 Murph. 82; 13 Pick.
145; 13 Wend. 300; 5 J. J. Marsh. 587.
3. Where a number of persons settle simultaneously or at short
intervals in the same neighborhood, and their tracts, if extended in certain
directions, would overlap each other, the settlers sometimes by agreement
determine upon dividing lines, which are called consentible lines. These
lines, when fairly agreed upon, have been sanctioned by the courts; and such
agreements are conclusive upon all persons claiming under the parties to
them with notice, but not upon bona fide purchasers for a valuable
consideration without notice, actual or constructive. 5 S. & R. 273; 9 W. &
S. 66; 3 S & R. 323; 5 Binn. 129; 10 Watts, 324; 17 S. &. R. 57; Jones, L.
0. T.
4. Lines fixed by compact between nations are binding on their citizens
and subjects. 11 Pet. 209; 1 Overt. 269; 1 Ves. sen., Rep. 450; 1 Atk. R. 2;
1 Ch. Cas. 85; 1 P. Wms. 723727; 2 Atk. R. 592; 1 Vern. 48; 1 Ves. 19; 2
Ves. 284; 3 S. & R. 331.
LINEAGE. Properly speaking lineage is the relationship of persons in a
direct line; as the grandfather, the father, the son, the grandson, &c.
LINEAL. That which comes in a line. Lineal consanguinity is that which
subsists between persons, one of whom is descended in a direct line from the
other. Lineal descent, is that which takes place among lineal kindred.
LINEAL WARRANTY, old English law. A warranty by the heir, when he derived
title to the land warranted, either from or through, the ancestor who made
the warranty. See Warranty.
LIQUIDATED. That which is made clear, certain, and manifest; as, liquidated
damages, ascertained damages liquidated debt, an ascertained debt, as to
amount. A debt is liquidated when it is certain what is due, and how much is
due, cum certum est an et quantum debeatur; for although it may appear that
something is due, if it does not also appear how much is due, the debt is
not liquidated. An unliquidated claim is one which one of the parties to the
contract cannot alone render certain. 5 M. R. 11; 1 N. S. 130; 6 N S. 715; 6
N. S. 10, 13 L. R. 275; 7 L. R. 134, 599. Such a claim cannot be set off. 2
Dall. 237; S. C. 1 Yeates' R. 571; 10 Serg. & Rawle, 14; see Poth. Ob. n.
628; Dig. 50, 17, 24; Id. 42, 1, 64; Id. 1, 45, 112; Id. 46, 5, 11; Code, 7,
47. Dom. Lois Civ. l. 4, t. 2, s. 2, n. 2; Arg. Inst. 1. 4, c. 7; 7 Toull.
n. 369; 6 Duv. Dr. Civ. Fr. n. 304.
LIQUIDATED DAMAGES. By this term is understood the fixed amount which a
party to an agreement promises to pay to the other, in case he shall not
fulfill some primary or principal engagement into which he has entered by the
same agreement it differs from a penalty. (q.v.) Vide Damages liquidated.
2. The damages will be considered as liquidated in the following cases:
1. When the damages are uncertain, and not capable of being ascertained by
any satisfactory or known rule; whether the uncertainty lies in the nature
of the subject itself, or in the particular circumstances of the case. 2 T.
R. 32 1 Ale. & N. 389; 2 Burr. 2225 10 Ves. 429; 7 Cowen, 307; 4 Wend. 468.
2. When, from the nature of the case, and the tenor of the agreement, it is
clear, that the damages have been the subject of actual and fair calculation
and adjustment between the parties. 2 Greenl. Ev. Sec. 259; 2 Story, Eq.
Sec. 1318; 3 C. & P. 240; 10 Mass. 450, 462; 6 Bro. P. C. 436; 3 Taunt. 473;
7 John. 72; 4 Mass. 433; 3 Conn. 58; 1 Bouv. Inst. n. 655, 765.
LIQUIDATION. A fixed and determinate valuation of things which before were
uncertain.
LIRA. The name of a foreign coin. In all computations at the custom house,
the lira of Sardinia shall be estimated at eighteen cents and six mills. Act
of March 22, 1846. The lira of the Lombardo-Venetian Kingdom, and the lira
of Tuscany, at sixteen cents. Act of March 22, 1846.
LIS. A suit; an action; a controversy in court; a dispute.
LIS MOTA. The cause of the suit or action. By this term is understood the
commencement of the controversy, and the beginning of the suit. 4 Campb. R.
417; 6 Carr. & P. 552, 561; 2 Russ. & My. 161; Greenl. Ev. Sec. 131, 132.
LIS PENDENS. The pendancy of a suit; the time between which it is instituted
and finally decided.
2. It has been decided that the mere serving of a subpoena in chancery,
unless a bill be also filed, is not a sufficient lis pendens, but the bill
being filed, the lis pendens commences from the service of the subpoena,
although that may not be returnable till the following term 1 Vern. 318; and
after a decree, final in its nature, there remains no lis pendens. 1 Vern.
459.
3. It is a general rule, that lis pendens is a general notice of an
equity to all the world. 3 Atk. 343; 2 P. Wms. 282; Amb. 676; 1 Vern. 286.
Vide 2 Fonb. Eq. 152, note; 1 Supp. to Ves. jr. 284; 3 Rawle, R. 14; Pow.
Mortg. index, h.t.; 1 John. Ch. R. 566; 2 John. Ch. R. 158; 4 John. Ch.
Rep. 83; 2 Rand. Rep. 93; 1 M'Cord, Ch. R. 264; Harp. Eq. R. 224; 1 Bibb, R.
314; 5 Ham. Rep. 462; 4 Cowen, R. 667; 1 Wend. R. 583; 1 Desaus. R. 167,
170; 2 Edw. R. 115; 1 Hogan, R. 69; 6 Har. & John. 21; 2 Dana, R. 480; Jac.
R. 202; 1 Russ. & My. 617 Corn. Dig. Chancery, 4 C 3; 2 Bell's Com. 152, 5th
ed.; 1 Bail. Eq. R. 479; 7 Dana, R. 110; 7 J. J. Marsh. 529; 1 Clarke, R.
560, 584; 14 Ohio, 109, 323.
4. When a defendant is arrested pending a former suit or action, in
which he was held to bail, he will not, in general, be held to bail, if the
second suit be for the same cause of action. Grah. Pr. 98; Tro. & Hal. Pr.
44; 4 Yeates' R. 206. But under special circumstances, he may be held to
bail twice, and of these circumstances the court will judge. 2 Miles, Rep.
99, 100, 142. See 14 John. R. 347. When such a second action is commenced,
the first ought to be discontinued and the costs paid; but, it seems, it is
sufficient if they are paid before the replication of nul tiel record to a
plea of autre action pendant. in the second suit. Grah. Pr. 98; and see 1
John. Cas. 397; 7 Taunt. 151; 1 Marsh. R. 395; Merl. Rep. Litispendance; 5
Ohio R. 462; 6 Ohio R. 225; 1 Blackf. R. 53; Id. 315; Autre action pendent;
Bail; Litigiosity.
LIST. A table of cases arranged for trial or argument; as, the trial list,
the argument list. See 3 Bouv. Inst. n. 3031.
LISTERS. This word is used in some of the states to designate the persons
appointed to make lists of taxables. See Verm. Rev. Stat. 538.
LITERAL CONTRACT, civil law. A contract, the whole of the evidence of which
is reduced to writing. This contract is perfected by the writing, and binds
the party who subscribed it, although he has received no consideration. Leg.
Elem. Sec. 887.
LITERARY PROPERTY. This name has been given to the right which authors have
in their works. This is secured to them by copyright. (q.v.) Vide 2 Bl.
Com. 405-6; 4 Vin. Ab. 278; Bac. Ab. Prorogation, F 5; 2 Kent, Com. 306 to
315; 1 Supp. to Ves. jr. 360, 376; 2 Id. 469; Nicklin on Literary Property;
Dane's Ab. Index, b. t.; 1 Chit. Pr. 98; 2 Amer. Jur. 248; 10 Amer. Jur. 62;
1 Law Intel. 66; Curt. on Copyr. 11; 1 Bell's Com. B. 1, part 2, c. 4, s.
2, p. 115; 1 Bouv. Inst. n. 508, et seq. Vide Copyright.
LITIGANT. One engaged in a suit; one fond of litigation.
LITIGATION. A contest authorized by law, in a court of justice, for the
purpose of enforcing a right.
2. In order to prevent injustice, courts of equity will restrain a
party from further litigation, by a writ of injunction; for example, after
two verdicts on trials at bar, in favor of the plaintiff, a perpetual
injunction was decreed. Str. 404. And not only between two individuals will
a court of equity grant this relief, as in the above case of several
ejectments, but also, when one general legal right, as a right of fishery,
is claimed against several, distinct persons, in which case there would be
no end of bringing actions, since each action would only bind the particular
right in question, between the plaintiff and defendant in such action,
without deciding the general right claimed. 2 Atk. 484; 2 Ves. jr. 587. Vide
Circuity of Actions.
LITIGIOSITY, Scottish law. The pendency of a suit; it is an implied
prohibition of alienation to the disappointment of an action, or of
diligence, the direct object of which is to obtain possession, or to acquire
the property of a particular subject. The effect of it is analogous to that
of inhibition. (q.v.) 2 Bell's Com. 152, 5th ed. Vide Lis Pendens.
LITIGIOUS. That which is the subject of a suit or action; that which is
contested in a court of justice. In another sense, litigious signifies a
disposition to sue; a fondness for litigation.
LITIGIOUS RIGHTS, French law. Those which are or may be contested either in
whole or in part, whether an action has been commenced, or when there is
reason to apprehend one. Poth. Vente, n. 584; 9 Mart. R. 183; Troplong, De
la Vente, n. 984 a 1003; Civ. Code of Lo. art. 2623; Id. 3522, n. 22. Vide
Contentious jurisdiction.
LITIS CONTESTATIO, civil law. "Contestari." It is when each party to a suit
(uterque reus) says "Teste estote." It was therefore, so called, because
persons were called on by the parties to the suit "to bear witness," "to be
witnesses." It is supposed that this contestatio was the usual termination
of certain acts before the magistratus or in jure, of which the persons
called to be witnesses were at some future time to bear record before the
judex, in judicio. The lis contestata, in the system of Justinian, consisted
in the statements made by. the parties to a suit before the magistrate
respecting the claim or demand, and the answer or defence to it. When this
was done, the cause was ready for hearing. Savig. Traite de Droit Romain,
tom. vi. Sec. cclviii.; Smith, Dict. Gr. & Rom. Antiq. h.v. The contesting
of the suit, or pleading the general issue. Vide 2 Bro. Civ. and Adm. Law,
358.
LITISPENDENCE. The part of an action being depending and undetermined; the
time during which an action is pending. See Lis pendens.
LITRE. A French measure of capacity. It is of the size of a decimetre, or
one-tenth part of a cubic metre. It is equal to 61.028 cubic inches. Vide
Measure.
LIVERY, Engl. law. 1. The delivery of possession of lands to those tenants
who hold of the king in capite, or knight's service. 2. Livery was also the
name of a writ which lay for the heir of age, to obtain the possession of
seisin of his lands at the king's hands. F. N. B. 155. 3. It signifies, in
the third place, the clothes given by a nobleman or gentleman to his
servant.
LIVERY OF SEISIN, estates. A delivery of possession of lands, tenements, and
hereditaments, unto one entitled to the same. This was a ceremony used in
the common law for the conveyance of real estate; and the livery was in
deed, which was performed by the feoffor and the feoffee going upon the
land, and the latter receiving it from the former; or in law, where the game
was not made on the land, but in sight of it. 2 Bl. Com. 315, 316.
2. In most of the states, livery of seisin is unnecessary, it having
been dispensed with either by express law or by usage. The recording of the
deed has the same effect. In Maryland, however, it seems that a deed cannot
operate as a feoffment, without livery of seisin. 5 Harr. & John. 158. Vide
4 Kent, Com. 381 2 Hill, Ab. c. 26, s. 4; 1 Misso. R. 553; 1 Pet. R. 508; 1
Bay's R. 107; 5 Har. & John. 158; Fairf. R. 318; Dane's Abridgment, h.t.;
and the article Seisin.
LIVRE TOURNOIS, com. law. A coin used in France before the revolution. It is
to be computed in the ad valorem duty on goods, &c., at eighteen and a half
cents. Act of March 2, 1798, s. 61, 1 Story's L. U. S. 626. Vide Foreign
Coins.
LOADMANAGE, maritime law, contracts. The pay to loadsmen; that is, persons
who sail or row before ships, in barks or small vessels, with instruments
for towing the ship, and directing her course, in order that she may escape
the dangers in her way. Poth. Des Avaries, n. 147; Guidon de la Mer, ch. 14;
Bac. Ab. Merchant and Merchandise, F.
LOAN, contracts. The act by which a person lets another have a thing to be
used by him gratuitously, and which is to be returned, either in specie or
in kind, agreeably to the terms of the contract. The thing which is thus
transferred is also called a loan. 1 Bouv. Inst. n. 1077.
2. A loan in general implies that a thing is lent without reward; but,
in some cases, a loan may be for a reward; as, the loan of money. 7 Pet. R.
109.
3. In order to make a contract usurious, there must be a loan; Cowp.
112, 770; 1 Ves. jr. 527; 2 Bl. R. 859; 3 Wils. 390 and the borrower must be
bound to return the money at all events. 2 Scho. & Lef. 470. The purchase of
a bond or note is not a loan ; 3 Scho. & Lef. 469; 9 Pet. R 103; but if such
a purchase be merely colorable, it will be considered as a loan. 2 John.
Cas. 60; Id. 66; 12 S. & R. 46; 15 John. R. 44.
LOAN FOR CONSUMPTION, or, MUTUUM. (q.v.) A contract by which the owner of
a personal chattel, called the lender, delivers it to another, known as the
borrower, by which it is agreed that the borrower shall consume the chattel
loaned, and return at the time agreed upon, another chattel, of the same
quality, kind, and number, to the lender, either gratuitously or for a
consideration; as, if Peter lends to Paul one bushel of wheat, to be used by
the latter, so that it shall not be returned to Peter, but instead of which
Paul will return to Peter another bushel of wheat of the same kind and
quality, at a time agreed upon.
2. It is evident that this contract differs essentially from a loan for
use. In the latter, the property of the thing lent remains with the lender,
and, if it be destroyed without the fault or negligence of the borrower, it
is his loss, and the thing to be returned is the identical thing lent; but
in the loan for consumption, the property passes to the borrower, and in
case of its destruction, he must bear the loss, and the identical property
is never to be returned, but other property of the like kind, quality, and
number. This contract bears a nearer resemblance to a barter or exchange; in
a loan for consumption the borrower agrees to exchange with the lender a
bushel of wheat, which he has not, but expects to obtain, for another bushel
of wheat which the lender now has, and with which he is willing to part; or
a more familiar example may be given: Debtor borrows from Creditor, one
hundred dollars to use as he shall deem best, and he promises to return to
Creditor another hundred dollars at a future time.
3. In cases of loan for consumption, the lender may charge for the use
of the thing loaned or not; as, if I lend one thousand dollars to a friend
for a month, I may charge interest or not but a loan for use is always
gratuitous when anything is charged for the use, it becomes a hiring. See
Hire; and also Mutuum.
LOAN FOR USE, or COMMODATUM, contracts. A bailment, or loan of an article
for a certain time, to be used by the borrower, without paying for it. 2
Kent's Com. 446, 447. Sir William Jones defines it to be a bailment of a
thing for a certain time, to be used by the borrower, without paying for it.
Jones' Bailm. 118. According to the Louisiana Code, art. 2864, it is an
agreement by which a person delivers a thing to another, to use it according
to its natural destination, or according to the agreement, under an
obligation on the part of the borrower, to return it after he shall have
done using it. This loan is essentially gratuitous. The Code Civil, art.
1875, defines it in nearly the same words. Lord Holt has defined this
bailment to be, when goods or chattels, that are useful, are lent to a
friend gratis, to be used by him: and it is called commodatum, he adds,
because the thing is to be restored in specie. 2 Ld. Ray. 909, 913.
2. The loan for use resembles somewhat a gift, for the lender, as in a
gift, gives something to the borrower; but it differs from the latter,
because there the property of the thing given is transferred to the donee;
instead of which, in the loan for use, the thing given is only the use, and
the property in the thing lent remains in the lender. This contract has also
some analogy to the mutuum, or loan for consumption; but they differ in
this, that in the loan for use the lender retains the property in the thing
lent, and it must be returned in individuo; in the loan for consumption, on
the contrary, the things lent are to be consumed, such as money, corn, oats,
grain, cider, &c., and the property in them is transferred to the borrower,
who becomes a debtor to the lender for the same quantity of like articles.
Poth. Pret a. Usage, n. 9, 10.
3. Several things are essential to constitute this contract; first,
there must be a thing which is lent; and this, according to the civil law,
may be either a thing movable, as a horse, or an immovable, as a house or
land, or goods, or even a thing incorporeal. But in our law, the contract
seems confined entirely to goods and chattels, or personal property, and not
to extend to real estate. It must be a thing lent, in contradistinction to a
thing deposited or sold, or entrusted to another for the purpose of the
owner. Story on Bailm. Sec. 223.
4. Secondly. It must be lent gratuitously, for if any compensation is
to be paid in, any manner whatsoever, it falls under Another denomination,
that of hire. Ayliffe's Pand. B. 4, tit. 16, n. 516; Louis. Code, art. 2865;
Pothier, Pret a Usage, c. 1, art. 1, n. 1, c. 2, art., 3, n. 11.
5. Thirdly. It must be lent for use, and for the use of the borrower.
It is not material whether the use be exactly that which is peculiarly
appropriate to the thing lent, as a loan of a bed to lie on, or a loan of a
horse to ride; it is equally a loan, if the thing is lent to the borrower
for any other purpose; as, to pledge as a security on his own account. Story
on Bailm. Sec. 225. But the rights of the borrower are strictly confined to
the use actually or impliedly agreed to by the lender, and cannot be
lawfully exceeded. Poth. Pret a Usage, c. 1, Sec. 1, art. l, n. 5. The use
may be for a limited time, or for an indefinite time.
6. Fourthly. The property must be lent to be specifically returned to
the lender at the determination of the bailment; and, in this respect it
differs from a mutuum, or loan for consumption, where the thing borrowed,
such as corn, wine, and money, is to be returned in kind and quantity. See
Mutuum. It follows, that a loan for use can never be of a thing which is to
be consumed by use; as, if wine is lent to be drunk at a feast, even if no
return in kind is intended, unless, perhaps, so far as it is not drunk; for,
as to, all the rest, it is strictly a gift.
7. In general, it may be said that the borrower has the right to use
the thing during the time and for the purpose which was intended between the
parties. But this right is strictly confined to the use, expressed or
implied in the particular transaction; and the borrower, by any excess, will
make himself responsible. Jones' Bailm. 68; Cro. Jac. 244; 2 Ld. Raym.
909,916; 1 Const. Rep. So. Car. 121; Louis. Code: art. 2869; Code Civil,
art. 1881; 2 Bulst. 306.
8. The obligations of the borrower are to take proper care of the thing
borrowed, to use it according to the intention of the lender, to restore it
in proper time, and to restore it in proper condition. Story on Bailm. Sec.
236; Louis. Code, art. 2869; Code Civ. 1880.
9. By the common law, this bailment may always be terminated at the
pleasure of the lender. (q.v.) Vin. Abr. Bailment, D; Bac. Abr. Bailment,
D.
10. The property in the thing lent in a loan for use, remains in the
lender, Story on Bailment, Sec. 283; Code Civil, art. 1877; Louis. Code,
art. 2866.
11. It is proper to remark that the loan for use must be lawful; a loan
by Peter to Paul of a ladder to enable him to commit a larceny, or of a gun,
to commit a murder, is not a loan for use, but Peter by this act becomes an
accomplice of Paul. 17 Duv. n. 503; 6 Duv. n. 32.
LOCAL. Pertaining to a place; something annexed to the freehold or tied to a
certain place; as, local courts, or courts whose jurisdiction is limited to
a particular place; local allegiance, or allegiance due while you are in a
particular place or country; local taxes, or those which are collected for
particular districts.
LOCAL ACTION, practice, pleadings. An action is local when the venue must be
laid in the county where the cause of action arose. 1 Chit. PI'. 271; 21
Vin. Ab. 79; 3 Bl. Com. 294; Bac. Ab. Actions, Local, &c.; Dane's Ab. Index,
h.t.; 15 Mass. 284; 1 Brock. 203; 1 Greenl. 246. Vide Action; Venue.
LOCALITY, Scotch law. This name is given to a life rent created in marriage
contracts in favor of the wife, instead of leaving her to her legal life
rent of terce. 1 Bell's Com. 55. See Jointure.
LOCATIO. Hire; a letting out.
LOCATIO CONDUCTIO, Civil law. Location conduction is a consensual contract,
by which a person becomes bound to deliver to another the use of a thing for
a certain time, or to do work at. a certain price. 1 Bouv. Inst. n. 984.
LOCATIO MERCIUM VEHENDARUM, contracts. A term used in the civil law to
signify the carriage of goods for hire.
2. In respect to contracts of this sort entered into by private
persons, not exercising the business of common carriers, there does not seem
to be any material distinction varying the rights, obligations and duties of
the parties from those of other bailees for hire. Every such private person
is bound to ordinary diligence, and a reasonable exercise of skill; and of
course he is not responsible for any losses not occasioned by ordinary
negligence unless he has expressly, by the terms of his contract, taken upon
himself such risk. 2 Ld. Raym. 909, 917, 918; 4 Taunt. 787; 6 Taunt. 577; 2
Marsh. 293,; Jones' Bailm. 103, 106, 121; 2 Bos. & Pull. 1l7; 1 Bouv. Inst.
n. 1020. See Common Carrier.
LOCATIO OPERIS, contracts. A term used in the civil law, to signify the
hiring of labor and services. It is a contract by which one of the parties
gives a certain work to be performed by the other, who binds himself to do
it for the price agreed between them, which he who gives the work to be done
promises to pay to the other for doing it. Poth. Louage, n. 392. This is
divided into two branches, first, Locatio operis faciendi; and, secondly,
Locatio mercium vehendarum. See these words.
LOCATIO OPERIS FACIENDI, contracts. A term used in the civil law. There are
two kinds, first, the location operis faciendi, strictly so called, or the
hire of labor and services; such as the hire of tailors to make clothes, and
of jewelers to set gems, and of watchmakers to repair watches. Jones' Bailm.
90, 96, 97. Secondly, Locatio custodiae, or the receiving of goods on
deposit for a reward, which is properly the hire of care and attention about
the goods. Story on Bailm. 422, 442; 1 Bouv. Inst. n. 994.
2. In contracts for work, it is of the essence of the contract, first,
that there should be work to be done; secondly, for a price or reward; and,
thirdly, a lawful contract between parties capable and intending to
contract. Pothier, Louage, n. 395 to 403.
LOCATIO REI, contracts. A term used in the civil law, which signifies the
hiring of a thing. It is a contract by which one of the parties obligates
himself to, give to the other the use and enjoyment, of a certain thing for
a period of time agreed upon between them, and in consideration of a price
which the latter binds himself to pay in return. Poth. Contr. de Louage, n.
l. See Bailment; Hire; Hirer; Letter.
LOCATION, contracts. A contract by which the temporary use of a subject, or
the work or service of a person, is given for an ascertained hire. 1 Bell's
Com. B. 2, pt. 3, c. 2, s. 4, art. 2, Sec. 1, page 255. Vide Bailment; Hire.
LOCATION, estates. Among surveyors, who are authorized by public authority
to lay out lands by a particular warrant, the act of selecting the land
designated in the warrant and surveying it, is called its location. In
Pennsylvania, it is an application made by any person for land, in the
office of the secretary of the late land office of Pennsylvania, and entered
in the books of said office, numbered and sent to the surveyor general's
office. Act June 25, 1781, Sec. 2, 2 Sm. Laws, 7.
LOCATOR, civil law. He who leases or lets a thing to hire to another. His
duties are, 1st. To deliver to the hirer the thing hired, that he may use
it. 2d. To guaranty to the hirer the free enjoyment of it. 3d. To keep the
thing hired in good order in such manner that the hirer may enjoy it. 4th.
To warrant that the thing hired has not such defects as to destroy its use.
Poth. Du. Contr. de Louage, n. 53.
LOCK-UP HOUSE. A place used, temporarily as a prison.
LOCO PARENTIS. In the place of a parent.
2. It is frequently important in cases of devises and bequests, to
ascertain whether the testator did or did not stand towards the devisee or
legatee, in loco parentis. In general, those who assume the parental
character may be considered as standing in that relation but this character
must clearly appear.
3. The fact of his so standing may be shown by positive proof, or the
express declarations of the testator in his will, or by circumstances; as,
when a grandfather; 2 Atk. 518; a brother; 1 B. & Beat. 298; or an uncle; 2
A. 492; takes an orphan child under his care, or supports him, he assumes
the office of a parent. The law places a master in loco parentis in relation
to his apprentice. See 2 Ashm. R. 178, 207; 2 Bouv. Inst. n. 2216.
LOCUM TENENS. He who holds the place of another, a deputy; as A B, locum
tenens of C D, mayor of the city of Philadelphia.
LOCUS. The place where a thing is done.
LOCUS CONTRACTUS. The place of the contract. In general, the law of the
place where the contract is made, governs in everything which relates to the
mode of construing it. Vide Lex loci contractus.
LOCUS DELICTI. The place where the tort, offence, or injury has been
committed.
LOCUS POENITENTIAE. contracts, crim. law. Literally this signifies a place
of repentance; in law, it is the opportunity of withdrawing from a projected
contract, before the parties are finally bound; or of abandoning the
intention of committing a crime, before it has been completed, 2 Bro. C. R.
569; Ersk. Laws of Scotl. 290. Vide article Attempt.
LOCUS IN QUO. The place in which. In pleadings it is the place where
anything is alleged to have been done. 1 Salk. 94.
LOCUS REI SITAE. The place where a thing is situated. In proceedings in rem,
in real actions in the civil law, or: those which have for their object the
recovery of a thing; and in real actions in the common law, or those for the
recovery of land, the proper forum is the locus rei sitae. 2 Gall. R. 191.
LOCUS SIGILLI. The place of the seal. 2. In many of the states, instead of
sealing deeds, writs, and other papers or documents requiring it, a scroll
is made in which the letters L. S. are printed or written, which is an
abbreviation of Locus Sigilli. This in some of the states has all the
efficacy of a seal, but in others it has no such effect. See Scroll.
LODGER. One who has a right to inhabit another man's house. He has not the
same right as a tenant; and is not entitled to the same notice to quit.
Woodf. L. &_T. 177. See 7 Mann. & Gr. 87; S. C. 49 E. C. L. R. 85, 151, and
article Inmate.
LODGINGS. Habitation in another's house, in which the owner dwells; the
occupier being termed a lodger.
LOG BOOK. A ship's journal. It contains a minute account of the ship's
course, with a short history of every occurrence during the voyage. 1 Marsh.
Ins. 408. When a log books required by law to be kept, it is an official
register so far as regards the transactions required by law to be entered in
it, but no further. Ab. Sh. by Story, 468, n. 1; 1 Sumn. R. 373 2
Summ. 19, 78; 4 Mason, R. 544; 1 Esp. R. 427.
LOQUELA, practice. An imparlance. Loquela sine die, a respite in law to an
indefinite time. Formerly by loquela was meant the allegations of fact
mutually made on either side, now denominated the pleadings. Steph. PI. 29.
LORD. In England, this is a title of honor. Fortunately in the U. S. no such
titles are allowed.
LORD'S DAY. The same as Sunday. (q.v.) Dies Dominicus non est juridicus.
Co. Litt. 135; Noy's Max. 2.
LOSS, contracts. The deprivation of something which one had, which was
either advantageous, agreeable or commodious.
2. In cases of partnership, the losses are in general borne by the
partners equally, unless stipulations or circumstance's manifest a different
intention. Story, Partn. Sec. 24. But it is not essential that the partners
should all share the losses. They may agree, that if there shall be no
profits, but a loss, that the loss shall be borne by one or more of the
partners exclusively, and that the others shall, inter se, be exempted from
all liabilities for losses. Colly. Partn. 11; Gow, Partn. 9; 3 M. & Wels.
357; 5 Barn. & Ald. 954 Story, Partn. Sec. 23.
3. When a thing sold is lost by an accident, as by fire, the loss falls
on the owner, res perit domino, and questions not unfrequently arise, as to
whether the thing has been delivered and passed to the purchaser, or whether
it remains still the property of the seller. See, on this subject, Delivery.
LOSS IN INSURANCE, contracts. A loss is the injury or damage sustained by
the insured in consequence of the happening of one or more of the accidents
or misfortunes against which the insurer, in consideration of the premium,
has undertaken to indemnify the insured. 1 Bouv. Inst. n. 1215.
2. These accidents or misfortunes, or perils, as they are usually
denominated, are all distinctly enumerated in the policy. And no loss,
however great or unforeseen, can be a loss with the policy, unless it be the
direct and immediate consequence of one or more of these perils, Marsh. Ins.
B, 1, c. 12. As to the risks which are within the common policy, see Marsh.
Ins. c. 7, s. 2.
3. Every loss is either total or partial.
4. The term total loss is understood in two different senses; natural
and legal. In its natural sense it signifies the complete and absolute
destruction of the thing inured. In its legal sense, it means, not merely
the entire destruction or deprivation of the thing insured, but also such
damage to it, though it specifically remain, as renders it of little or no
value to the owner. A loss is also deemed total, if, by the happening of any
of the perils or misfortunes insured against, the voyage be lost, or be not
worth pursuing, and the projected adventure be frustrated; or if the value
of what he saved, be less than the freight. See Dougl. 231; 1 T. R. 608; Id.
187; Str. 1065; 13 East, R. 323; 2 M. & S 374 1 N. R. 236; 1 Wils. 191; 4 T.
R. 785 9 East, R. 283; 3 B. & P. 388; Marsh. Ins. B. 1, c. 12; 1 T. R. 187.
5. A partial loss, is any loss or damage short of, or not amounting to
a total loss, for if it be not the latter it must be the former. See 4 Mass.
374; 6 Mass. 102; Id, 122; Id. 317; 7 Mass. 349; 9 Mass. 20; 12 Mass. 170;
12 Mass. 288; 6 Mass. 479; 8 Mass. 494; 10 Johns. Rep. 487; 8 Johns. 237; 5
Binn. 595; 2 Serg. & Rawle, 553.
6. Partial losses are sometimes denominated average losses, because
they are often in the nature of those losses which are the subject of
average contributions; and they are distinguished into general and
particular averages. See tit. Average.
7. Losses are occasioned in a variety of ways but most usually by the
following: 1. By perils of the sea. See tit. Perils of the Sea. 2. By
collision, as where one ship drives against, or runs foul of another. Marsh.
Ins. B. 1, c. 12, s. 2. 3. By fire. Marsh. B. 1, c. 12, s. 3. 4. By capture.
See tit. Capture; Marsh. Ins. B. 1. c. 12, s. 4; 2 Caines' C. Err. 158; 7
Johns. R. 449; 13 Johns. R. 161; 14 Johns. R. 227; 3 Wheat. 183; 4 Cranch,
43; 6 Mass. 197. 5. By detention of princes. By the terms of the policy, the
insurer is liable for all loss occasioned by "arrest or detainments of all
kings, princes, and people, of what nation, condition, or quality soever."
Under these words, the insurers are liable for all losses occasioned by
arrests or detention of the ship, or goods insured, by the authority of any
prince or public body claiming to exercise sovereign power, under what
pretence soever. Marsh. Ins. B. 1, c. 12, s. 5. See Embargo; People. 6. By
Barratry. Marsh. Ills. B. 1, c. 12, s. 6. See tit. Barratry; 2 Caines' R.
67; Id. 222; 3 Caines' Rep. 1; 1 Johns. R. 229; 8 Johns. R. 209, 2d edit.; 5
Day, 1; 11 Johns. Rep. 40; 13 Johns. Rep. 451; 2 Binn. 574; 2 Dall. 137; 8
Cranch, 39; 3 Wheat. 168. 7. By average by contribution. See Marsh. Ins. B.
1, c. 12, s. 7; this Dict. tit. Average. 8., By salvage. See tit. Salvage;
Marsh. Ins. B. 1, c. 12, s. 8. 9. By the death of animals. If animals, such
as horses, cattle, or beasts or birds of curiosity, be insured in their
passage by sea, their death, occasioned by tempests, by the shot of an
enemy, by jettison in a storm, or by any other extraordinary accident,
occasioned by the perils enumerated in the policy, is a loss for which the
underwriters are liable. Not so, if it be occasioned by mere disease or
natural death. Marsh. Ins. B. 1, c. 12, s. 10. 10. By fraud. Marsh. Ins. B.
1, c. 12, s. 11. See, generally, Com. Dig. Merchant, E 9, n; Bac. Abr.
Merchant, 1. 5
LOST. What was once possessed and cannot now be found.
2. When a bond or other deed was lost, formerly the obligee or
plaintiff was compelled to go into equity to seek relief, because there was
no remedy a law, the plaintiff being required to make profert in his
declaration. 1 Chan. c. 7T. But in process of time courts of law dispensed
with profert in such cases, and thereby obtained concurrent jurisdiction
with the courts of chancery, so that now the loss of any paper, other than a
negotiable note, will not prevent the plaintiff from recovering at law as
well as in equity. 3 Atk. 214; 1 Ves. 341; 5 Ves. 235; 6 Ves. 812, 7 Ves.
19; 3 V. & B. 54.
3. When a negotiable note has been lost, equity will grant relief. In
such case the claimant must tender an indemnity to the debtor, and file a
bill in chancery to compel payment. 7 B. & C. 90; Ryan & Mo. 90; 4 Taunt.
602; 2 Ves. sen. 327; 16 Ves. 430.
LOST PAPERS. When a paper containing an agreement between parties, a will,
and the like, has been so mislaid, that after a diligent search it cannot be
found, it is said to be lost.
2. When such a document has been lost, and it is required to prove its
contents, the party must prove that he has made diligent search, and, in
good faith, exhausted all sources of information accessible to him. For this
purpose his own affidavit is sufficient. 1 Atk. 446; 1 Greenl. Ev. Sec. 349.
On being satisfied of this, the court will allow secondary evidence to be
given of its contents. See Evidence.
3. Even a will proved to be lost, may be admitted to probate, upon
secondary evidence. 1 Greenl. Ev. Sec. 84, 509, 575; 2 Greenl. Ev. Sec. 668,
a, 2d ed. But the fact of the loss must be proved by the clearest evidence,
because it may have been destroyed by the testator animo revocandi. 8 Mete.
487; 2 Addams, 223; 6 Wend. 173; 1 Hagg. Eccl. R. 115; 3 Pick. 67; 5 B.
Munroe, 58; 2 Curt. 913.
LOST OR NOT LOST. These words are sometimes inserted in policies of marine
insurance. They are used when the underwriter undertakes that if the ship or
goods should be lost at the time of the insurance, still the underwriter is
liable, provided there is no fraud. Moll. B. 2, c. 7, s. 5; Hildy. on Mar.
Ins. 10.
LOT. Anything on which depends the accidental determination of a right by
which we acquire or lose something; or it is that which fortuitously
determines what we are to acquire. When it can be certainly known what are
our rights, we ought never to resort to a decision by lot; but when it is
impossible to tell what actually belong to us, as if an estate is divided
into three parts and one part given to each of three persons, the proper way
to ascertain each one's part is to draw lots. Wolff, Dr. &c., de la Nat.
Sec. 669.
LOT OF GROUND. A small piece of land in a town or city usually employed for
building, a yard, a garden or such other urban use. Lots are in-lots, or
those within the boundary of the city or town, and out-lots, those which are
out of such boundary, and which are used by some of the inhabitants of such
town or city.
LOTTERY. A scheme for the distribution of prizes by chance.
2. In most, if not all of the United States, lotteries not specially
authorized by the legislatures of the respective states are prohibited, and
the persons concerned in establishing them are subjected to a heavy penalty.
This is the case in Alabama, Connecticut Delaware, Georgia, Kentucky,
Maryland, Massachusetts, Mississippi, New York, Ohio, Pennsylvania, Rhode
Island, Tennessee, Vermont and Virginia. In Louisiana, a license is granted
to sell tickets in a lottery not authorized by the legislature of that
state, on the payment of $5000, and the license extends only to one lottery.
In many of the states, the lotteries authorized by other states, are
absolutely prohibited Encycl. Amer. h.t.
LOUISIANA. The name of one of the new states of the United States of
America. This state was admitted into the Union by the act of congress,
entitled "An act for the admission of the state of Louisiana into the Union,
and to extend the laws of the United States to the said state," approved
April 8, 1812, 2 Story's L. U. S. 1224; the preamble of which recites and
the first section enacts as follows, namely:
2. Whereas the representatives of the people of all that part of the
territory or country ceded, under the name of "Louisiana," by the treaty
made at Paris, on the thirtieth day of April, one thousand eight hundred and
three, between the United States and France, contained within the following
limits; that is to say: beginning at the mouth of the river Sabine; thence,
by a line to be drawn along the middle of said river, including all islands
to the thirty-second degree of latitude; thence, due north, to the
northernmost part of the thirty-third degree of north latitude, thence,
along the said parallel of latitude, to the river Mississippi; thence, down
the said river, to the river Iberville; and from thence, along the middle of
the said river, and lakes Maurepas and Ponchartrain, to the gulf of Mexico;
thence, bounded by the said gulf, to the place of beginning; including all
islands within three leagues of the coast; did, on the twenty-second day of
January, one thousand eight hundred and twelve, form for themselves a
constitution and state government, and give to the said state the name of
the state of Louisiana, in pursuance of an act of congress, entitled "An act
to enable the people of the territory of Orleans to form a constitution and
state government, and for the admission of the said state into the Union, on
an equal footing with the original states, and for other purposes: And the
said constitution having been transmitted to congress, and by them being
hereby approved; therefore,
3.-1. Be it enacted, &c. That the said state shall be one, and is
hereby declared to be one of the United States of America and admitted into
the Union on an equal footing with the original states, in all respects
whatever, by the name and title of the state of Louisiana: Provided, That it
shall be taken as a condition upon which the said state is incorporated in
the Union, that the river Mississippi, and the navigable rivers and waters
leading into the same, and into the Gulf of Mexico, shall be common
highways, and forever free, as well to the inhabitants of the said state as
to the inhabitants of other states, and the territories of the United
States, without any tax, duty, impost, or toll, therefor, imposed by the
said state; and that the above condition, and also all other the conditions
and terms contained in the third section of the act, the title whereof is
hereinbefore recited, shall be considered, deemed, and taken, fundamental
conditions and terms, upon which the said state is incorporated in the
Union. See 11 M. R. 309.
4. By the present constitution of the state of Louisiana, which was
adopted in 1845; the powers of the government of the state of Louisiana, are
divided into three distinct departments, each of them confined to a separate
body of magistracy, to wit: The legislative to one, the executive to
another, and the judicial to a third. Title I.
5.-1st. The legislative power is vested in a general assembly, which
consists of a senate and house of representatives.
6.-1. The senate will be considered with reference to the
qualification of the electors; the qualification of the members the length
of time for which they are elected and the time of their election. 1. In all
elections by the people, every free white male, who has been two years a
citizen of the United States, who has attained the age of twenty-one years,
and resided in the state two consecutive years next preceding the election,
and the last year thereof in the parish in which he offers to vote, shall
have the right of voting: Provided, That no person shall be deprived of the
right of voting, who, at the time of the adoption of this constitution, was
entitled to that right under the constitution of 1812. Absence from the
state for more than ninety consecutive days, shall interrupt the acquisition
of the residence required in the preceding section, unless the person
absenting himself shall be a housekeeper, or shall occupy a tenement for
carrying on business, and his dwelling house or tenements for carrying on
business, be actually occupied during his absence, by his family or
servants, or some portion thereof, or by some one employed by him. No
soldier, seaman, or marine in the army or navy of the United States, no
pauper, no person under interdiction, nor under conviction of any crime
punishable by hard labor, shall be entitled to vote at any election in this
state. 2. No person shall be a senator, who, at the time of his election,
has not been a citizen of the United States ten years, and who has not
attained the age of twenty-seven years and resided in the state four years
next preceding his election, and the last year thereof, in the district in
which he may be chosen. The number of senators shall be thirty-two. 3. The
members of the senate shall be chosen for the term of four years. 4. Their
election takes place on the first Monday in November, every two years, so
that one half of their number are elected every two years, and a perpetual
rotation thereby kept up.
7.-2. The house of representatives will be treated of in the same
manner as that of the senate. 1. The electors are qualified in the same
manner as those of the senate. 2. No person shall be a representative, who,
at the time of his election, is not a free white male, and has not been for
three years a citizen of the United States, and has not attained the age of
twenty-one years, and resided in the state for three years next preceding
the election, and the last year thereof in the parish for which he may be
chosen. The number of representatives shall not be more than one hundred,
nor less than seventy. 3. They are chosen every two years. 4. Their election
is on the first Monday in November, every two years. Title II.
8.-2d. The supreme executive power of the state shall be vested in a
chief magistrate, who shall be styled the governor of the state of
Louisiana. He is elected by the qualified electors at the time and place of
voting for representatives; the person having the greatest number of votes,
shall be declared elected. But if two or more persons shall be equal in the
highest number of votes polled, one of them shall immediately be chosen
governor by the joint vote of the members of the general assembly. 2. No
person shall be eligible to the office of governor, who shall not have
attained the age of thirty-five years, been fifteen years a citizen of the
United States, and a resident within the state for the same space of time
next preceding his election. 3. He shall hold his office during the term of
four years, but shall be ineligible for the succeeding four years after its
termination. 4. His principal functions are as follows: He shall be
commander-in-chief of the army and navy of this state, and of the militia
thereof, except when they shall be called into the service of the United
States. He shall take care that the laws be faithfully executed. From time
to time give to the general assembly information respecting the situation of
the state, and recommend to their consideration such measures as he may deem
expedient. Shall have power to grant reprieves for all offences against the
state. With the consent of the senate, have power to grant pardons and remit
fines and forfeitures, after conviction, except in cases of impeachment. In
cases of treason, may grant reprieves until the end of the next session of
the general assembly, in which the pardoning power shall be vested. Shall
nominate, and by and with the advice and consent of the senate, appoint all
officers established by this constitution, whose mode of appointment is not
otherwise prescribed by the constitution, nor by the legislature. Have power
to fill vacancies during the recess of the senate, provided he appoint no
one whom the senate have rejected for the same office. May, on extraordinary
occasions convene the general assembly at the seat of government, or at a
different place, if that should have become dangerous from an enemy or from
an epidemic; and in case of disagreement between the two houses as to the
time of adjournment, he may adjourn them to such time as he may think
proper, not exceeding four months. He shall have the veto power. Title III.
9.-3d. The judicial power is vested by title IV of the constitution,
as follows:
10.-1. The judicial power shall be vested in a supreme court, in
district courts, and injustices of the peace.
11.-2. The supreme court, except in cases hereinafter provided, shall
have appellate jurisdiction only, which jurisdiction shall extend to all
cases when the matter in dispute shall exceed three hundred dollars, and to
all cases in which the constitutionality or legality of any tax, toll, or
impost of any kind or nature soever, shall be in contestation, whatever may
be the amount thereof; and likewise to all fines, forfeitures, and penalties
imposed by municipal corporations, and in criminal cases on questions of law
alone, whenever the punishment of death or hard labor may be inflicted, or
when a fine exceeding three hundred dollars is actually imposed.
12.-3. The supreme court shall be composed of one chief justice, and
of three associate justices, a majority of whom shall constitute a quorum.
The chief justice shall receive a salary of six thousand dollars, and each
of the associate judges a salary of five thousand five hundred dollars
annually. The court shall appoint its own clerks. The judges shall be
appointed for the term of eight years.
13.-4. When the first appointments are made under this constitution,
the chief justice shall be appointed for eight years, one of the associate
judges for six years, one for four years, and one for two years and in the
event of the death, resignation, or removal of any of said judges before the
expiration of the period for which he was appointed, his successor shall be
appointed only for the remainder of his term; so that the term of service of
no two of said judges shall expire at the same time.
14.-5. The supreme court shall hold its sessions in New Orleans, from
the first Monday of the month of November, to the end of the month of June,
inclusive. The legislature shall have power to fix the sessions elsewhere
during the rest of the year; until otherwise provided, the sessions shall be
held as heretofore.
15.-6. The supreme court, and each of the judges thereof, shall have
power to issue writs of habeas corpus, at the instance of all persons in
actual custody under process, in all cases in which they may have appellate
jurisdiction.
16.-7. In all cases in which the judges shall be equally divided in
opinion, the judgment appealed from shall stand affirmed; in which case each
of the judges shall give his separate opinions in writing.
17.-8. All judges, by virtue of their office, shall be conservators of
the peace throughout the state. The style of all processes shall be, "The
State of Louisiana." All prosecutions, shall be carried on in the name and
by the authority of the state of Louisiana, and conclude, against the peace
and dignity of the same.
18.-9. The judges of all the courts within this state shall, as often
as it may be possible so to do, in every definite judgment, refer to the
particular law in virtue of which such judgment may be rendered, and in all
cases adduce the reasons on which their judgment is founded.
19.-10. No court or judge shall make any allowance by way of fee or
compensation in any suit or proceedings, except for the payment of such fees
to ministerial officers as may be established by law.
20.-11. No duties or functions shall ever be attached by law to the
supreme or district courts, or to the several judges thereof, but such as
are judicial; and the said judges are prohibited from receiving any fees of
office or other compensation than their salaries for any civil duties
performed by them.
21.-12. The judges of all courts shall be liable to impeachment; but
for any reasonable cause, which shall not be sufficient ground for
impeachment, the governor shall remove any of them on the address of three-
fourths of the members present of each house of the general assembly. In
every such case the cause or causes for which such removal may be required,
shall be stated at length in the address, and inserted in the journal of
each house.
22.-13. The first legislature assembled under this constitution shall
divide the state into judicial districts, which shall remain unchanged for
six years, and be subject to reorganization every sixth year thereafter. The
number of districts shall not be less than twelve, nor more than twenty. For
each district one judge, learned in the law, shall be appointed, except in
the districts in which the cities of New Orleans and Lafayette are situated,
in which the legislature may establish as many district courts as the public
interest may require.
23.-14. Each of the said judges shall receive a salary to be fixed by
law, which shall not be increased or diminished during his term of office,
and shall never be less than two thousand five hundred dollars annually. He
must be a citizen of the United States, over the age of thirty years, and
have resided in the state for six years next preceding his appointment, and
have practised law therein for the space of five years.
24.-15. The judges of the district courts shall hold their offices for
the term of six years. The judges first appointed shall be divided by lot
into three classes, as nearly equal as can be, and the term of office of the
judges of the first class shall expire at the end of two years, of the
second class at the end of four years, and of the third class at the end of
six years.
25.-16. The district courts shall have original jurisdiction in all
civil cases when the amount in dispute exceeds fifty dollars, exclusive of
interest. In all criminal cases, and in all matters connected with
successions, their jurisdiction shall be unlimited.
26.-17. The jurisdiction of justices of the peace shall never exceed,
in civil cases, the sum of one hundred dollars, exclusive of interest,
subject to appeal to the district court in such cases as shall be provided
for by law. They shall be elected by the qualified voters of each parish for
the term of two years, and shall have such criminal jurisdiction as shall be
provided for by law.
LOW WATER MARK. That part of the shore of the sea to which the waters recede
when the tide is the lowest. Vide High Water Mark; River; Sea Shore; Dane's
Ab. h.t.; 1 Halst. R. 1.
LOYAL. Legal; according to law; as, loyal matrimony, a lawful marriage;
attached to the existing law.
LOYALTY. That which adheres to the law, that which sustains an existing
government. See Penal Laws of China, 3.
LUCID INTERVAL, med. jur. That space of time between two fits of insanity,
during which a person non compos mentis is completely restored to the
perfect enjoyment of reason upon every subject upon which the mind was
previously cognizant. Shelf. on Lun. 70; Male's Elem. of Forensic Medicine,
227; and see Dr. Haslam on Madness, 46; Reid's Essays on Hypochondriasis,
317 Willis on Mental Derangement, 151.
2. To ascertain whether a partial restoration to sanity is a lucid
interval, we must consider the nature of the interval and its duration. 1st.
Of its nature.: "It must not," says D'Aguesseau, "be a superficial
tranquillity, a shadow of repose, but on the contrary, a profound
tranquillity, a real repose; it must not be a mere ray of reason, which only
makes its absence more apparent when it is gone, not a flash of lightning,
which pierces through the darkness only to render it more gloomy and dismal,
not a glimmering which unites night to the day; but a perfect light, a
lively and continued lustre, a full and entire day, interposed between two
separate nights of the fury which precedes and follows it; and to use
another image, it is not a deceitful and faithless stillness, which follows
or forebodes a storm, but a sure and steady tranquillity for a time, a real
calm, a perfect serenity; without looking for so many metaphors to represent
an idea, it must not be a mere diminution, a remission of the complaint, but
a kind of temporary cure, an intermission so clearly marked, as in every
respect to resemble the restoration of health." 2d, Of its duration. "As it
is impossible," he continues, "to judge in a moment of the qualities of an
interval, it is requisite that there should be a sufficient length of time
for giving a perfect assurance of the temporary reestablishment of reason,
which it is not possible to define in general, and which depends upon the
different kinds of fury, but it is certain there must be a time, and a
considerable time." 2 Evan's Poth. on Oblig. 668, 669.
3. It is the duty of the party who contends for a lucid interval to
prove it; for a person once insane is presumed so, until it is shown that he
has a lucid interval or has recovered. Swinb. 77; Co. Litt. by Butler, n.
185; 3 Bro. C. C. 443; 1 Rep. Con. Ct. 225; 1 Pet. R. 163; 1 Litt. R. 102.
Except perhaps the alleged insanity was very long ago, or for a very short
continuance. And the wisdom of a testament, when it is proved that the party
framed it without assistance, is a strong presumption of the sanity of a
testator. 1 Phill. R. 90;1 Hen. & Munf. 476.
4. Medical men have doubted of the existence of a lucid interval, in
which the mind was completely restored to its sane state. It is only an
abatement of the symptoms, they say, and not a removal of the cause of the
disease; a degree of irritability of the brain remains behind which renders
the patient unable to withstand any unusual emotion, any sudden provocation,
or any unexpected pressing emergency. Dr. Combe, Observations on Mental
Derangement, 241; Halsam, Med. Jur. of Insanity, 224; Fodere, De Medecine
Legale, tom, 1, p. 205, 140; Georget, Des Maladies Mentales, 46; 2 Phillim.
R. 90; 2 Hagg. Eccl. R. 433; 1 Phillim. Eccl. R. 84.
See further, Godolph. 25; 3 Bro. C. C. 443; 11 Ves. 11; Com. Dig.
Testimoigne, A 1; 1 Phil. Ev. 8; 2 Hale, 278; 10 Harg. State Tr. 478;
Erskine's Speeches, vol. 5, p. l; 1 Fodere, Med. Leg. Sec. 205.
LUCRE. Gain, profit. Cl. des Lois Rom. h.t.
LUCRI CAUSA. This is a Latin expression, which signifies that the thing to
which it applies is done for the sake of gain.
2. It was supposed that when a larceny was committed the taking should
have been lucri causa; but it has been considered that it is not necessary
the taking should be lucri causa, if it be fraudulenter, with intent to
wholly deprive the owner of the property. Russ. & Ry. 292; 2 RUSS.' on Cr.
92. 1 Car. & K. 532. Vide Inst. lib. 4, t. 1, s. 1.
LUGGAGE. Such things as are carried by a traveller, generally for his
personal accommodation; baggage. In England this word is generally used in
the same sense that baggage is used in the United States. See Baggage.
LUNACY, med. jur. A disease of the mind, which is differently defined as it
applies to a class of disorders, or only to one species of them. As a
general term it includes all the varieties of mental, disorders, not
fatuous.
2. Lunacy is adopted as a general term, on account of its general use
as such in various legislative acts and legal proceedings, as commissions of
lunacy, and in this sense it seems to be synonymous with non compos mentis,
or of unsound mind.
3. In a more restricted sense, lunacy is the state of one who has bad
understanding, but by disease, grief, or other accident, has lost the use of
reason. 1 Bl. Com. 304.
4. The following extract from a late work, Stock on the Law of Non
Compotes Mentis, will show the difficulties of discovering what is and what
is not lunacy. "If it be difficult to find an appropriate definition or
comprehensive name for the various species of lunacy," says this author,
page 9, "it is quite as difficult to find anything approximating to a
positive evidence of its presence. There are not in lunacy, as in fatuity,
external signs not to be mistaken, neither is there that similarity of
manner and conduct which enables any one, who has observed instances of
idiocy or imbecility, to detect their presence in all subsequent cases, by
the feebleness of perception and dullness of sensibility common to them all.
The varieties of lunacy are as numerous as the varieties of human nature,
its excesses commensurate with the force of human passion, its phantasies
coextensive with the range of human intellect. It may exhibit every mood
from the most serious to the most gay, and take every tone from the most
sublime to the most ridiculous. It may confine itself to any trifling
feeling or opinion, or overcast the whole moral and mental conformation. It
may surround its victim with unreal persons and events, or merely cause him
to regard real persons and events with an irrational favor or dislike,
admiration or contempt. It may find satisfaction in the most innocent folly,
or draw delight from the most atrocious crime. It may lurk so deeply as to
elude the keenest search, or obtrude so openly as to attract the most
careless notice. It may be the fancy of an hour, or the distraction of a
whole life. Such being the fact, it is not surprising that many scientific
and philosophical men have vainly exhausted their observation and ingenuity
to find out some special quality, some peculiar mark or characteristic
common to all cases of lunacy, which might serve at least as a guide in
deciding on its absence or presence in individual instances. Being hopeless
of a definition, they would willingly have contented themselves with a test,
but even this the obscurity and difficulty of the subject seem to forbid.
5. Lord Erskine, who, in his practice at the bar, had his attention
drawn this way, from being engaged in some of the most remarkable trials of
his time involving questions of lunacy, has given as his test, "a delusive
image, the inseparable companion of real insanity," (Ersk. Misc. Speeches)
and Dr. Haslam, whose opportunities of observation have surpassed most other
persons, has proposed nearly the same, by saying that "false belief is the
essence of insanity." (Haslam on Insanity.) Sir John Nicholl, in his
admirable judgment in the case of Dew v. Clark, thus expresses himself: "The
true criterion is, where there is delusion of mind there is insanity; that
is, when persons believe things to exist, which exist only, or at least, in
that degree exist only in their own imagination, and of the non-existence of
which neither argument nor proof can convince them; they are of unsound mind;
or as one of the counsel accurately expressed it, it is only the belief of
facts, which no rational person could have believed, that is insane
delusion." (Report by Haggard, p. 7.) Useful as these several remarks are,
they are not absolutely true. It is indeed beyond all question that the
great majority of lunatics indulge in some "delusive image," entertain some
"false belief." They assume the existence of things or persons which do not
exist, and so yield to a delusive image, or they come to wrong conclusions
about persons and things which do exist, and so fall into a false belief.
But there is a class of cases where lunacy is the result of exclusive
indulgence in particular trains of thought or feeling, where these tests are
sometimes wholly wanting, and yet where the entire absorption of the
faculties in one predominant idea, the devotion of all the bodily and mental
powers to one useless or injurious purpose, prove that the mind has lost its
equilibrium. With some passions, indeed, such as self-esteem and fear, what
was at first an engrossing sentiment, will often go on to a positive
delusion; the self-adoring egotist grows to fancy himself a sovereign or a
deity; the timid valetudinarian becomes the prey of imaginary diseases, the
victim of unreal persecutions. But with many other passions, such as desire,
avarice or revenge, the neglect and forgetfulness of all things save one,
the insensibility to all restraints of reason, morality, or prudence, often
proceed to such an extent as to justify holding an individual as a lunatic,
incapable of all self-restraint, although, strictly speaking, not possessed
by any delusive image or false belief. Much less do these tests apply to
many cases of irresistible propensity to acts wholly irrational, such as to
murder or to steal without the smallest assignable motive, which, rare as
they are, certainly occur from time to time, and cannot but be held as an
example of at least partial and temporary lunacy. It is to cases where no
false belief or image can be detected, that the remark of Lord Erskine is
more particularly applicable; "they frequently mock the wisdom of the wisest
in judicial trials," (Ersk. Misc. Speeches,) and were not the paramount
object of all legal punishment the benefit of the community, which makes it
inexpedient to spare offenders against the law, if insanity be the ground of
their defence, except upon the clearest proof, lest skillful dissemblers
should thereby be led to hope for impunity, very subtle questions might no
doubt be raised as to the degree of moral responsibility and mental sanity
attaching to the perpetrators of many atrocious acts, seeing that they often
commit them tinder temptations quite inadequate to allure men of common
prudence, or under passions so violent as to suspend altogether the
operations of reason or free will. For as it is impossible to obtain an
accurate definition of lunacy, so it is manifestly so, to draw the line
correctly between it and its opposite rationality, or, to borrow the words
of Chief Justice Hale, (1 Hale's P. C. p. 30,) "Doubtless most persons that
are felons, of themselves and others, are under a degree of partial insanity
when they commit those offences. It is very difficult to define the
indivisible line that divides perfect and partial, insanity; but it must
rest on circumstances duly to be weighed and considered both by the judge
and jury, lest on one side there be a kind of inhumanity towards the defects
of human nature, or on the other side too great an indulgence given to great
crimes."
LUNAR. That which belongs to the moon; relating to the moon as a lunar
month. See Month.
LUNATIC, persons. One who has had an understanding, but who, by disease,
grief, or other accident, has lost the use of his reason. A lunatic is
properly one who has had lucid intervals, sometimes enjoying his senses, and
sometimes not. 4 Co. 123; 1 Bl. Com. 304; Bac. Abr. Idiots, &c., A; 1 Russ.
on Crimes, 8; Shelf. on Lun. 4; Merlin, mot Demence; Fonb. Eq. Index, h.t.;
15 Vin. Ab. 131; 8 Com. Dig. 721; 1 Supp. to Ves. jr. 94, 130, 369, 404;
2 Supp. to Ves. jr. 51, 106, 151, 360; 1 Vern. 9, 137, 262; Louis. Code,
tit. 9, c. 1; and articles Lucid Interval; Lunacy.
LYING IN GRANT. Incorporeal rights and things which cannot be transferred by
livery of possession, but which exist only in idea, in contemplation of law,
are said to lie in grant, and pass by the mere delivery of the deed. Vide
Grant; Livery of Seisin; Seisin.
LYING IN WAIT. Being in ambush for the purpose of murdering another.
2. Lying in wait is evidence of deliberation and intention.
3. Where murder is divided into degrees, as in Pennsylvania, lying in
wait is such evidence of malice, that it makes the killing, when it takes
place, murder in the first degree. Vide. Dane's Ab. Index, h.t.
LYNCH-LAW. A common phrase used to express the vengeance of a mob,
inflicting an injury, and committing an outrage upon a person suspected of
some offence. In England this is called Lidford Law. Toml.L. Dict. art.